dissenting.
Appellant’s motion for rehearing is overruled, without written opinion. I dissent.
A proper disposition of this case does not depend upon the question of the sufficiency of the predicate to impeach the state’s witnesses Montague and Jacquelyn Daggs or the sufficiency of the testimony to impeach those witnesses.
*550The question here presented goes much deeper, for it directly involves the deprivation to this appellant of his right to be confronted by the witnesses against him, as guaranteed by the Constitution of this state, Art. 1, Sec. 10, which right carries with it the right of cross-examination of the witnesses.
There is no question but that the right of cross-examination is embodied in the constitutional right of confrontation. Ludwig v. State, 164 Texas Cr. Rep. 295, 298 S.W. 2d 166; Garcia v. State, 151 Texas Cr. Rep. 593, 210 S.W. 2d 574; Paulk v. State, 107 Texas Cr. Rep. 174, 296 S.W. 588.
The right of cross-examination is a condition essential to the reception of direct testimony. Testimony is not admissible if the person against whom it is to be used has no opportunity to cross-examine the witness. 44 Texas Jur., Witnesses, Sec. 145, at p. 1142.
In the light of those rules let us see if, as he claims, appellant has been deprived of his right to cross-examine the two state’s witnesses named. In the first place, it is well to keep in mind that a felony case is tried by and before a jury. It is the jury that hears the testimony of the witnesses and passes upon their credibility. Obviously, therefore, when a witness testifies before the jury, the right to cross-examine that witness necessarily encompasses the requirement that the cross-examination be made in the presence and hearing of the jury. When the right to cross-examine the witness in the presence of the jury is cut off or denied, the constitutional right of cross-examination has been denied, as also has the right of trial by jury.
Such denial is exactly what this record shows.
The cross-examination of the witnesses Montague and Jacqueline Daggs as to certain phases of their testimony was before the trial court and not before the jury.
When appellant’s counsel attempted to ask the predicate questions as.to,certain factors contained in written statements by the witnesses shortly after the alleged unlawful act, state’s counsel interposed an objection. Thereupon, the jury was with drawn, and the' questioning as to the written statements of the witnesses was conducted entirely before the court and out of the presence of the jury. The written statements of the witnesses were introduced before the trial court but were never seen or *551heard by the jury. At the completion of this cross-examination of the witnesses before the trial court, the state’s objection was sustained and appellant was denied the right to go into the matter or to cross-examine the witnesses as to the matters developed upon the hearing before the court, including the right to introduce before the jury the written statements the witnesses had made.
Such action of the trial court of and within itself constituted a denial to the appellant of his constitutional right to cross-examine the witnesses against him. The denial to an accused of a right guaranteed by the Constitution is, of and within itself, prejudicial error.
To say that such error could be justified or held to be immaterial to the preservation to an accused of his rights goes to the very foundation of our judicial process, which is the right of trial by jury.
But this record does show that appellant, here, was both prejudiced and injured by the trial court’s action.
To demonstrate such fact it is necessary only to call attention to the testimony of the witness Montague. It will be remembered that this was the witness who, in an endeavor to obtain the license number thereof, pursued the automobile that struck the injured party.
Upon the trial, the witness denied having obtained the license number. In the written statement she made shortly after the transaction, the witness stated the license number of the automobile she followed as “2615.” The license number of appellant’s automobile was entirely different from that number. In other words, if what the witness said in her statement was true, then it was not appellant’s automobile that was involved in the alleged unlawful act, which would be a very material defensive fact.
It occurs to me that the least preservation to this appellant of the right of cross-examination would have accorded him the right to cross-examine the witness upon that point, alone.
Other portions of the statements of the witnesses could be adverted to, but if the matter already pointed out was not a vior *552lation of the right of cross-examination then neither would those matters be in violation thereof, and no good purpose would be served in discussing them.
In addition to the error shown, there is this further matter which precludes an affirmance of this case: I call attention to the fact that the indictment was drawn under and this case was prosecuted as a violation of Art. 1150, P.C.', which makes it a felony for one to fail to stop and render aid after striking a person with an automobile. The charging part of the indictment alleged as follows:
“* * * Ervin Walter Blum on or about the 26th day of July, A.D. 1956, in said County and State was then and there the driver of, and person in control of, a motor vehicle, to wit, an automobile, upon a public highway in Harris County, Texas, and said motor vehicle which was then and there being operated by said Ervin Walter Blum, did then and there strike and collide with and cause injury to a person, to wit, Fannie Lucille Daggs, and the said Ervin Walter Blum did then and there unlawfully fail and refuse to stop after striking and colliding with the said Fannie Lucille Daggs, and did then and there drive on and leave said place where said collision occurred.
“* * * that Ervin Walter Blum, on or about the 26th day of July, A. D. 1956, in said County and State, was then and there the driver of, and person in control of a motor vehicle, to wit, an automobile, upon a public highway in Harris County, Texas, and said motor vehicle which was then and there being operated by said Ervin Walter Blum, did then and there strike and collide with and cause injury to a person, to wit, Fannie Lucille Daggs, and the said Ervin Walter Blum did then and there unlawfully fail and refuse to stop after striking and colliding with the said Fannie Lucille Daggs, and did then and there drive on and leave said place where said collision occurred, and did then and there fail to render all necessary assistance to the said Fannie Lucille Daggs, in this, to wit, he, the said Ervin Walter Blum, did then and there fail and neglect to carry the said Fannie Lucille Daggs to a physician for medical treatment, and did then and there fail to and neglect to procure a conveyance and assist in procuring a conveyance to carry the said Fannie Lucille Daggs to a place for treatment for her injuries received in said collision, said injuries to said Fannie Lucille Daggs then and there being of such a nature that such assistance was then and there required and necessary.”
*553The indictment charged, correctly, a violation of Art. 1150, P.C.
In the case of Redding v. State, No. 29,759, delivered October 15, 1958, (page 517 this volume), 316 S.W. 2d 724; my brethren affirm a misdemeanor conviction for failure to stop after striking another vehicle with an automobile, which offense is denounced as a felony by Art. 1050, P.C.
In affirming that case my brethren hold that Art. 1150, P.C., including all that part thereof which made it a felony for one to fail to stop after striking another vehicle with an automobile, was repealed in 1947 by the passage of Sec. 39 of Art 6701d, R.C.S., which makes such acts a misdemeanor.*
To that conclusion I entered my dissent and, as reflected therein, I insisted that neither Art. 1150 P.C., nor any part thereof was repealed or affected by the passage of Art. 6701d, R.C.S., or any section thereof. I also insisted that if any part of Art. 1150, P.C., was repealed, as my brethren held, then that entire article had been repealed.
My brethren made no express determination that the whole of Art. 1150, P.C., was repealed by Art. 6701d, R.C.S. However, when they affirmed the county court conviction under an information in the Redding case they thereby held that Art. 1150, P.C., was no longer in existence and had been repealed, because the elements of that article were alleged and charged in the information in the Redding case.
Under those allegations the information charged a felony under Art. 1150, P.C., if that statute was in existence. I called attention to such fact in my dissenting opinion in the Redding case.
This prosecution was brought and the conviction was obtained as a violation of Art. 1150, P.C.
*554It is only by virtue of Art. 1150, P.C., that the indictment in this case can be sustained. There is no other statute which makes unlawful the acts alleged in the indictment here. Sec. 38 of Art. 6701d, R.C. S., can not be looked to as the statute supporting the indictment.**
Said See. 38 of Art. 6701d, R.C.S., makes it unlawful for the operator of any vehicle involved in an accident wherein some person is injured to fail to stop at the scene of such accident.
To charge a violation of that section, the indictment must of necessity allege that some person was either injured or killed as the result of an accident in which the driver of a vehicle was involved.
The instant indictment contains no such allegation. It does not charge, therefore, a violation of Sec. 38 of Art. 6701d, R.C.S. —all of which demonstrates the correctness of my position in the Redding case, that being that Art. 1150, P.C., is now in full force and effect and has never been repealed, modified, or changed by any act of the legislature.
When my brethren hold as they did, in affirming the Red-ding case, then Art. 1150, P.C., was, in 1947, completely destroyed by the enactment of Art. 6701d, R.C.S., Art. 1150, P.C., could not, then, furnish the statute under which this prosecution was brought and conviction obtained.
This conviction, then, must be sustained — if at all — under Sec. 38, of Art. 6701d, R.C.S. As pointed out, the indictment wholly fails to allege the constituent elements of that statute.
If the holding in the Redding case is correct, then this conviction can not be sustained under Art. 1150, P.C., because that statute ceased to exist in 1947. If Sec. 38 of Art. 6701d, R.C.S. superseded Art. 1150, P.C., then in order to affirm this convic*555tion under that section (Sec. 38 of Art. 6701d, R.C.S.) the indictment must allege a violation of that section.
The indictment, here, alleges a violation of Art. 1150, P.C.
Has Art. 1150, P.C., been repealed? Under the holding in the Redding case, it has been. Under the holding here, it has not been repealed.
The inconsistency in the holdings in the two cases, Redding and the instant case, is apparent.
ON APPELLANT’S SECOND MOTION FOR REHEARING
MORRISON, Presiding Judge.It has been suggested that the jury were not permitted to hear the witness Montague on the question of the license number or any impeachment thereof. We call attention to the following portions of her direct examination in the hearing of the jury:
“Q. Did you ever get the license number of that Buick ? A. No sir. I got a number that I thought was the number.
“Q. And did you turn over what you thought was the number to the police officers? A. Yes sir.
“Q. And did they put it on the air? A. I don’t know.
“Q. Are you sure of any numbers that you tried to get from that Buick — Are you sure that any of the numbers that you got were accurate or correct? A. No sir.
“Q. Did you ever tell anybody that the numbers you got off the Buick, that you were certain were accurate or correct? A. No sir.
“Q. Are you certain right now what any number of that Buick license plate was? A. No sir.”
On cross-examination by appellant’s counsel, also in the hearing of the jury, we find the following:
“Q. You had already seen the numbers for a distance of at least three blocks before you got to.Ella Lee, had you not, Miss *556Montague? A. I don’t remember whether I saw any license number.
“Q. Did you make up the number you gave the officer as the number? A. No sir.
“Q. Where then, Miss Montague, did you get the number, 2615, if that was the number you gave the officer? A. It must have been the number that I thought I saw.
“Q. You mean at this time you have no recollection of having seen the license number, but that night you assumed you had seen it, and did give him the correct number, is that what you mean? A. No sir. That night I wasn’t sure those were the right numbers.
“Q. Where did you get the number, such as you did give the officer, if not from the license plate? A. They were numbers that I thought I had seen.
“Q. On the license plate? A. Yes sir.”
We remain convinced of the soundness of our original opinion, and appellant’s second motion for rehearing is overruled.
“See. 39. (Accident involving damage to vehicle). The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall. forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary. Any person failing to stop or to comply with said re7 quirements under such circumstances shall be guilty of a misdemeanor.”
“Sec. 38. (Accidents involving death or personal injuries) (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto ,as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary.
“(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment.”