The state urges in its motion that we were wrong in holding that the trial court's refusal to let witness Phenice explain the theft charge which the state proved had been lodged against him, was error on the part of the lower court. It is contended that recent decisions of this court go further in reference to letting in detailed explanations in such cases, than the earlier holdings of the court do. It has been the uniform rule since the days when the Supreme Court had appellate jurisdiction of criminal cases in Texas, that a witness has the right to explain any fact brought out against him by the other party which tends to create distrust of the truthfulness or integrity of the witness. State v. Ivey, 41 Tex. 38; Kunde v. State, 22 Tex.Crim. App. 98; Bruce v. State, 31 Tex. Crim. 594. The *Page 640 general principle thus announced is believed to be the same as that here involved. In Tippett v. State, 37 Tex. Crim. 191, we seem to have first spoken directly on the point involved. A witness was shown in that case to be under indictment for theft. We said in our opinion that on re-examination by the party introducing him the witness should have been allowed to state that he was a bona fide purchaser of the alleged stolen cattle, and that he had not stolen them. In Cowart v. State, 71 Tex.Crim. Rep., we said that if the state proved that the accused had been indicted for embezzlement, he had the right to explain, at least in a general way to show the cases amounted to nothing, and that he was never tried or convicted upon them, and that they were dismissed. We also said "He might not go into details of the transaction." The state relies in the motion before us on what is said in the Cowart case, supra, and the Howard case,111 S.W. 1038. We think the Howard case not in point but clearly distinguishable. In that case the witness proved to be under indictment, was not asked about such fact or to make any explanation, by the accused placed on the witness stand the attorney who represented the witness referred to, and offered to prove by the attorney that he had investigated the charges against his client and that there was no foundation for such charges. This testimony was rejected, and we correctly upheld its rejection. In the Tippett case, supra, the doctrine of the instant case is announced, not so much in detail but substantially, for if one against whom it has been shown that he is under indictment, may testify he did not steal the property in question but bought it and paid for it in good faith, the Rubicon is crossed, and the domain of detail is invaded. In the Cowart case, supra, we are at some loss to know just what the great judge writing the opinion meant when he said therein if one who had been asked if he was under indictment, and admitted it — that he might explain in a general way and show that the case amounted to nothing, and might show that the case had been dismissed or never tried. We are constrained to believe that if the attention of the judge of this court writing that opinion had been focused on this exact point and the decision in the Tippett case, supra, had been brought before him, as well as those cases announcing the general principle above referred to, he probably would not have used the expression in the opinion which is relied on by the state here but would have expressed himself, as was his wont, with vigorous clarity and in accord with the doctrine of the recent cases. How could one explain, even in a general way, *Page 641 so that the explanation would have any weight or be of value, without some details?
There is a difference between the rule in civil cases and in criminal cases in this state in regard to admitting testimony that one has been charged with crime as affecting the credibility of the person so charged, as a witness in court. The practice in criminal cases allows such proof. Manifestly when one has been so charged, and the case against him has subsequently been dismissed or an acquittal had, the question of the reflective force of proof of the fact that he has been charged merely, might be doubtful. If either party know in advance — and the very fact of asking such question would afford ground for presumption of such knowledge — that the charge against the witness has been dismissed or that he had been acquitted, it would seem to be fair for such party to ask of the witness if he has not been so charged, under peril of having the party thus attacked make his statement that he was not guilty, or make such explanation as he reasonably desires in connection therewith. Upon the testimony of such attacked witness, however, we think the matter should rest and that other witnesses might not be called on the issue, as was attempted in the Howard case, supra. To us this rule seems fair. Even if one who admits that he has been convicted attempts to make some explanation in mitigation or refutation of the reflection resulting from such proof, and the attacking party be denied the right to introduce testimony controverting this issue, it still seems the attacking party would have the best of the argument. We are unable to agree with the state's contention in this regard.
Upon the other proposition advanced in the motion, viz.: that we erred in holding the charge on manslaughter too restrictive because it did not permit the jury to take into consideration the acts and conduct of others beside the deceased, we are constrained, upon re-examination of the record, to think we were correct. Careful analysis of the charge excepted to shows that in fact the trial court in effect told the jury that they could not take into consideration the acts of persons acting with deceased, in arriving at a solution of appellant's claim that he was acting under passion arising from an adequate cause in killing deceased.
The state's motion for rehearing is overruled.
State's motion overruled.
Morrow, P. J., not sitting. *Page 642