I adopt the following brief and argument of appellant, as my dissenting opinion: "There are a number of matters complained of in the record which I think are sufficiently meritorious to require a reversal of the judgment. The court erred in holding that the manner of the State's attorney examining its witness W.G. Cobble, was without error, for the reason: I. The State can not impeach its own witness when the witness merely fails to make a case or gives negative testimony injurious to the State's case. II. It is improper to hold up a paper and pretend to read from it as the testimony of the witness on a former occasion and lay the predicate to impeach him without first submitting such paper or document to the witness. And III. It is not a proper practice to make insinuations before the jury by the pretense of a predicate to impeach and thereby leave the impression on the jury that the witness' original testimony made out a straight case, and that for some reason unknown to the prosecution he has changed his testimony. This is not proper and should constitute reversible error. The statute authorizes this to be done when the witness states facts injurious to his cause, and does not give this right on a mere pretext, and I think the bill shows it was a mere pretext. Take it that such procedure was in good faith, then it was not just to the defendant; and quoting the words of the *Page 537 court in Greenbough v. Eccles, 5 C.B. (N.S.), 786: `The legislature could never have intended to introduce the unsworn statements of a witness as evidence in favor of a party who calls him, which with the jury they inevitably would be — merely on the ground that the witness, without any sinister motive or ill-feeling, honestly gives a different account of the matter in the witness box from what he had given on a former occasion, without fraud on the party who calls him. It would be unjust to the party and unfair to the witness to allow it.' In a local option case this court without any dissent held that such a procedure was illegal. Largin v. State, 37 Tex.Crim. Rep.. There it was said it was hearsay; that the witness simply gave negative testimony when he denied paying 25 cents for beer he got from the defendant, and that it could not help the State's case to impeach its own witness. But the court may say, as it did in the opinion affirming this case, that the answer `was not particularly harmful' because the witness answered in the negative; but this court ought not to say that such conduct by the State's officers was not harmful. He lead the jury to believe that he had the statement of the witness before him and was reading from it and that this witness had at one time made out a case. I say, in the language of the court in Greenbough v. Eccles, supra, that it meant `to introduce the unsworn statements of a witness as evidence in favor of the party who calls him — which with the jury they inevitably would be.' It was getting this matter before the jury with no intention to prove it by legal evidence. I call attention to bill of exceptions No. 7 which complains of this matter. The court there certified that the witness said: `I don't remember of telling you that, for I don't remember of seeing him,' instead of saying that he saw him in there waiting on customers. As a common-sense proposition it seems that the jury would inevitably suppose from the action of the county attorney that the facts he stated in his question were the real facts and that the witness had been induced to change his testimony. Bennett v. State, 24 Texas Crim. App., 73; Gill v. State, 36 Tex.Crim. Rep.; Bailey v. State, 37 Tex. Crim. 579; Largin v. State, 37 Tex.Crim. Rep.; Erwin v. State, 32 Tex.Crim. Rep.; Dunagain v. State,38 Tex. Crim. 614; Gibson v. State, 29 S.W. Rep., 471.
"On the second proposition, it is illegal and unfair to the witness (the defendant) and the jury to pretend to be reading from a document and not let the witness see it or the jury or the defendant know its contents. In Grosse v. State, 11 Texas Crim. App., 375, Judge Hurt said that it was necessary to show the witness his signature and that part of the deposition with which it was sought to impeach him. That principle was also strongly laid down in State v. Steeves, 43 Pac. (Or.), 947. I also refer to Greenl. Ev., sec. 46, and to 7 Enc. of Ev., pages 117-19.
"On the third proposition I am clearly of opinion that it should be demanded of the State that the prosecution be fair and open and such practice as this be condemned. I think the record bears out the *Page 538 statement that the witness never made the statements and the county attorney was misleading the jury. An examination of bill of exceptions No. 7 will show that counsel made this statement as a part of their objection: `That it was the intention of the county attorney when asking the question to make a mere insinuation to argue as evidence before the jury, with no intention to get on the stand or put any witness on the stand to impeach him, and such actions were unfair and dishonest both as to the witness and the defendant.' If the attorney could have shown that the witness did make such statement to him, does it not seem reasonable that he would have taken the stand or put some witness on the stand to prove these statements after he had been accused in open court of being unfair and dishonest in asking such question, and after being told that he could not make the proof and did not intend to do so when he asked the question? The record does not show that he sought to prove it. It would have been more just to make such proof in a case where it could be made than to so introduce unsworn hearsay statements by questions, as it might leave the impression on the jury that the witness perjured himself in an attempt to clear the defendant and that the defendant caused him to do it. With this impression left on the jury a very convincing argument can be made that the State has a hard time punishing such experienced violators of the law, and this too after having had access to the witnesses from the filing of the information to the final trial, and when the witnesses who patronize them are naturally in sympathy with them.
"II. In regard to the cross-examination of the defendant as a witness. The opinion says: `A more serious question arises on the cross-examination of appellant.' It also says: `We have had much doubt, in passing on this question.' Shall the reasonable doubt extend only to the jury in weighing the facts, or shall it extend through the entire case? The defendant should have the benefit of the doubt as to whether he was given a fair trial. I think my brethren erred in holding that the defendant could be forced to tell on cross-examination about the seizure of goods in his possession six weeks after this alleged sale, for the following, as a few of the reasons:
"1. A witness can not be impeached with illegal evidence.
"2. Other offense not involving moral turpitude can not be introduced to impeach.
"3. A judgment in a civil case is not binding and can not be introduced in a criminal case to prove the guilt of the deceased.
"4. Even if such a judgment was admissible it could not be proven by parol.
"5. The defendant could not be bound by such judgment because he was not a party to it, not being present and not agreeing to it and not contesting it.
"6. The judgment was absolutely void, being a forfeiture casein favor of the State tried before the Hon. Geo. W. King, ajustice of the peace. *Page 539
"7. It does not impeach because it does not prove or disprove anything, being a judgment by default and no test made or proof that the liquor was in fact intoxicating.
"8. It was hearsay and the ex parte proceeding of a justice of the peace.
"9. Even if it should have proved that the liquors seized were intoxicating it was too remote in time to be introduced against the defendant, being six weeks after the alleged offense.
"In order to discuss the propositions above named, I will quote the testimony of the defendant with reference to keeping intoxicating liquors; and, in this connection, will call attention to the testimony of both the State's witnesses. Cobble testified that he bought `wakasha' from Smith, and Thompson says he bought `frosty' and that it was labeled `frosty' on the bottle. The defendant says he purchased these goods from the Dallas Brewery and that they guaranteed it to be non-intoxicating, and that he had drank it and did not think it was intoxicating, and that if it was intoxicating he did not know it. He says he never had beer or anything intoxicating in the house. Now, on this testimony, the majority holds that it would be admissible to impeach the defendant as a witness. In the first place, this is illegitimate testimony and can not be introduced to impeach a defendant or any other witness, and at the same time, the principle that a wide latitude is sometimes permissible in impeaching a witness even though it be a defendant. In Morales v. State, 36 Tex.Crim. Rep.; 36 S.W, Rep., 435, and Parker v. State, 57 S.W. Rep., 668, the court held that the defendant could not be impeached by statements he had made while under arrest without proper warning, and gave as the reason therefor that it was illegal testimony, in that it was indirectly getting before a jury a confession that failed to meet the requirements of the statute. In Merritt v. State, 39 Tex.Crim. Rep., the court held the wife could not be impeached by matters not brought out on direct examination because it was illegal testimony. The best test is, it seems to me, as to whether or not the testimony could be offered originally. The same proposition was held in a murder case, Price v. State, 43 S.W. Rep., 96; Drake v. State, 29 Texas Crim. App., 265.
"It was in effect introducing evidence of other offenses and this court has held that a local option violation does not involve moral turpitude. Stewart v. State, 38 S.W. Rep., 1144, and cases there cited. By the same process of reasoning that he could be impeached because he may have said he never kept intoxicating liquors. Taking it on the basis that this proof really showed that he did have intoxicating liquors, let's see where it would lead us. Say that the witness Cobble had testified that defendant sold him whisky and defendant denied; also suppose, in that connection, that defendant had theretofore been convicted of selling this same witness whisky; then, because the defendant denied the sale, could he be made to admit that he had theretofore been convicted of *Page 540 selling to the witness for the purpose of impeaching and showing that he probably did? If the State has a case why not try such case on the evidence instead of prejudicing the jury by outside matters on the mere pretext that it impeaches? If they can not convict on the testimony and facts which really occurred, ought not the defendant to go free rather than be convicted on a matter that he had no control over and which had nothing to do with the case on trial?
"Now, to hold that this evidence was admissible, the court must hold that a civil judgment can be introduced in a criminal case; that such judgment can be proved by parol testimony; that it is admissible when the party against whom it was introduced had nothing to do with it and did not contest it; and also that a void judgment is admissible. There is no question but that it is a civil suit, made so by statute. The defendant had no part in the rendering of it because it was taken by default. Busby v. State, 51 Tex.Crim. Rep.; 103 S.W. Rep., 638. He gives a reasonable explanation for not contesting the case; and besides, a man does not have to fight a suit that is filed against him. He says that he advised with his attorney and the attorney told him not to fight it because it would cost more than the seized goods were worth; that he would have to take a jury and that would cost him $3, for the J.P. would condemn soda pop. The seized goods were not valuable, costing less than 10 cents per bottle, and there were only twenty-four bottles of it, for they left all bottles from which the labels had not washed off. These facts are not disputed. It cannot be said that he admits the intoxicating quality when he paid the costs, but it must be remembered that a judgment had been rendered against him, justly or unjustly it matters not, and he was bound to pay the costs if he had anything subject to execution. This reasoning is on the basis that it was a real judgment, which I deny. Any ex parte statement is as legal and binding as the act of the justice of the peace, Geo. W. King, who, in this instance, has assumed the function of the district judge. His act rendering the judgment was absolutely void and not binding or admissible for any purpose because such was a forfeiture case and the district court alone has jurisdiction of such matters. Myers v. State, 52 Tex.Crim. Rep. Texas Ct. Rep., 800; art. 8, sec. 5 of the Constitution; and every case in which any appellate court has had the matter before it.
"This court in Myers v. State, in a measure overruled Parish v. State, 48 Tex.Crim. Rep., 89 S.W. Rep., 830; Harris v. State, 50 Tex.Crim. Rep., 97 S.W. Rep., 704, and numerous others providing that other offenses can be introduced or the fact of liquor in defendant's possession at or near the time. But at the same time the court says it must not be too remote. In the Myers case, just decided, the seizure complained of, as in this case, took place six weeks after the alleged sale, and the court said it was not admissible. In this case the seizure was also six weeks after the alleged sale, and so there can be no controversy about it being admissible in point of time."
There are other matters which I intend discussing but the foregoing, *Page 541 reasons are sufficient. I therefore file my dissent to the opinion of the majority of the court.