
    POPE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1911.
    On Motion for Rehearing, Jan. 24, 1912.)
    1. Criminal Law (§ 1076) — Appeal—Failure to Pile Appeal Bond — Dismissal.
    An appeal from a criminal prosecution will be dismissed where no sufficient recognizance or appeal bond is filed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716; Dec. Dig. § 1076.]
    On Motion for Rehearing.
    2. Witnesses (§ 372) — Impeachment —III Feeling.
    In a prosecution for carrying knucks, the accused could show on cross-examination of the prosecuting witness, to establish bias, that a few days before the fight in which the knucks were discovered such witness had provoked a fight with the accused, and was worsted, that he had told another person that, if the accused did not rebate a certain note, he would report him for carrying knucks, and that the defendant had refused to rebate such note.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    3. Witnesses (§ 372) — Impeachment —III Feeling.
    Even where a witness in a criminal prosecution admits his bias, the extent of it may be shown on cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 372.]
    4. Witnesses (§ 372) — Impeachment — III Feeling.
    Where, in a criminal, prosecution, it is sought to impeach a state’s witness by showing bias, great latitude is permissible in the cross-examination, and motives which operate on the mind of a witness when he testifies are never regarded as immaterial or collateral.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    
      5. Witnesses (§ 372) — Impeachment—Animus.
    Accused on cross-examination of a state’s witness C. to show animus was entitled to show that just before the fight in which the knueks he was accused of carrying were seen the accused had a conversation with O., who asked him if he had paid his fine for a previous fight, and told him as he started to move away that he need not hurry, that the person whom the fight was with was satisfied, and he need expect no further trouble from him, in connection with evidence that the prosecuting witness almost immediately afterward asked the same question, and attacked accused from behind and that O. interfered to prevent the separation of the parties to the fight.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 372.]
    6. Weapons (§ 17) — Carrying Concealed Weapons — Evidence.
    Where, in a prosecution for carrying knueks, the defense was that accused did not have the knueks, but that in the fight in which they were seen they were on his breast and rolled off when he arose, evidence that the wounds inflicted upon the accused in the fight in question were such as could not have been inflicted with a bare hand or fist, but must have been produced by some hard substance, would tend to show that the defendant did not have the knueks and is material.
    [Ed. .Note. — Por other cases, see Weapons, Cent. Dig. § 27; Dec. Dig. § 17.]
    Appeal from Eastland County Court; E. A. Hill, Judge.
    Jim Pope was convicted of carrying knuckles, and appeals.
    Reversed and remanded.
    J. R. Stubblefield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAYIDSON, P. J.

This appeal must be dismissed for want of a sufficient recognizance. There is what purports to be a recognizance or appeal bond, which is totally insufficient.

Por want of a sufficient recognizance the appeal is dismissed.

On Motion for Rehearing.

The appeal herein was dismissed recently for want of a sufficient recognizance. Appellant has supplied this defect in compliance with the statute. The appeal is reinstated, and the case will be disposed of on its merits. Appellant was charged with carrying on his person knuckles made of some hard substance.

The state shows, in substance, that during the fight between White and appellant that White knocked appellant down several times, and made several cuts about his head and neck; that during the difficulty and about the time they were separated brass knueks were seen to fall from about the person of appellant, perhaps from one of his hip pockets. Appellant met this with evidence to the effect that he did not have brass knueks, and that the knueks evidently were used by White in making the attack upon him, and that, when they were separated, White had him down on his back, and these brass | knueks were on his breast, and, as he got up, they fell off on the floor of the gallery where the fight occurred. These matters were before the jury, and appellant defended on the theory that he did not at the time have knueks, and never owned such thing.

While the witness White was on cross-examination, he testified that his feelings toward the defendant were neither good nor bad.' Defendant then sought to elicit from the witness', and he would have testified, that it was a fact that he desired the conviction of the defendant in this case; that the witness had a few days before the fight in which the knueks were discovered provoked a difficulty with the defendant in defendant’s field, in which difficulty the defendant in this case got the best of the fight; also, that a short time before the indictment was found in this case the witness had told one Brashears in his store at Staff, a brother-in-law of defendant and also of White, that, if defendant did not rebate a certain note held against witness by defendant, he, witness, would report defendant for carrying knueks, and that defendant had refused to allow such rebate on said note. It is also recited in the bill that the witness would have testified to these facts. The county attorney’s objection to the introduction of this testimony was sustained upon the ground that it was immaterial, and the court refused to permit defendant to introduce this evidence. This is clearly error. Earle v. State, 142 S. W. 1181, decided at the present term of the court; Watson v. State, 9 Tex. App. 245; Daffin v. State, 11 Tex. App. 79; Hart v. State, 15 Tex. App. 235, 49 Am. Rep. 188; Rosborough v. State, 21 Tex. App. 675, 1 S. W. 459; Tow v. State, 22 Tex. App. 184, 2 S. W. 582; Brownlee v. State, 48 Tex. Or. R. 410, 87 S. W. 1153; Gregory v. State, 48 S. W. 577; O’Neal v. State, 57 Tex. Cr. R. 249, 122 S. W. 386; Sapp v. State, 77 S. W. 458; Reddick v. State, 47 S. W. 995.

Even where a witness admits his bias or prejudice, the extent of this may be shown. Mason v. State, 7 Tex. App. 623; Magruder v. State, 35 Tex. Cr. R. 219, 33 S. W. 233; Lyon v. State, 42 Tex. Cr. R. 506, 61 S. W. 125.

Defendant may also prove facts which show motive on the part of the witness to testify against him, or which show that the witness is testifying under circumstances which make it necessary to testify against defendant in order to save himself. Watts v. State, 18 Tex. App. 384. Defendant may also show animus and prejudice on the part of the state’s witness towards him and its extent. In such examination great latitude is allowed when the object is to impeach the credit of such witness. Mason v. State, 7 Tex. App. 623; Blunt v. State, 9 Tex. App. 235; Daffin v. State, 11 Tex. App. 79; Watts v. State, 18 Tex. App. 383; Tow v. State, 22 Tex. App. 184, 2 S. W. 582; Bennett v. State, 28 Tex. Cr. App. 540, 13 S. W. 1005; Lyon v. State, 42 Tex. Or. R. 506, 61 S. W. 125. Motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility. In addition to the cases already cited, see Sager v. State, 11 Tex. App. 111; Bonnard v. State, 25 Tex. App. 195, 7 S. W. 862, 8 Am. St. Rep. 431; Green v. State, 54 Tex. Cr. R. 7, 111 S. W. 933; Gelber v. State, 56 Tex. Cr. R. 462, 120 S. W. 863. These extracts and statements are taken from Branch’s Criminal Law of Texas, § 861. The cases cited by Mr. Branch under these propositions sustain each proposition under which they are cited. The statements of the proposition are so clear, terse, and accurate by Mr. Branch that it is deemed unnecessary to do more than to state the propositions as he has stated them. They are clear, forcible, to the point, and accurate. The court, therefore, was in error in excluding this testimony.

There is another question that we notice in passing. Another bill recites that, after the witness Capps had testified for the state, he was taken by appellant on cross-examination. After the witness had related the circumstances of seeing a pair of knucks fall from the pocket of defendant, and after such witness had testified that his feelings toward the defendant were good, the witness testified, in substance, that just prior to the time of the difficulty between the prosecuting witness White and the defendant, during which difficulty the knucks were observed, and before White had come to where the defendant was, he, witness, had had a conversation with the defendant in the rear of the store, just as defendant was about to leave and before White arrived, and defendant sought to prove by the witness the character of conversation had by said witness with defendant on that occasion ; that is, that he, witness, asked defendant if he had paid his fine for a previous fight he and White had been engaged in, to which defendant replied that he had, and started to move away, when witness said to the defendant, as he caught him by the arm, that he, defendant, need not hurry; that White had said he was satisfied (referring to the previous fight between White and defendant), and that he, defendant, need expect no further trouble from White; that immediately upon the completion of such conversation White entered the front of the store and remained until defendant passed out. This evidence, we think, upon another trial should be permitted to go to the jury, in view of the fact that White asked appellant as he passed out of the store the same question with reference to paying his fine, and appellant notified him that he had paid it, and passed on not suspecting any trouble, when White followed him on the gallery and struck him from behind on the neck or back of the head, and cut a severe gash and knocked him down, and continued to strike him about the head, cutting gashes which bled profusely, and while they were fighting a proposition was made to separate them, and this witness Capps interfered, and would not permit it to be done. We think this bore directly on the animus and went to the credibility of the witness, and should have gone to the jury. Upon another trial this testimony should be admitted.

There is another question shown by a bill, to wit, that after the fight, and while the wounds were being dressed at the residence of appellant’s father after the fight in which the knucks were seen, and after the wounds had been dressed, appellant sought to prove by two witnesses that the wounds about the defendant’s face and head, and especially the wound on the back of the head, where the defendant claimed White had struck him, were bruises and cut wounds, and the one on the rear of the head was so bruised and cut that it was bleeding profusely, and that they were such wounds as could not have been inflicted with a bare hand or fist, but that they were such as could only have been produced by some hard substance. To this the county attorney objected, and the court sustained the objection. This testimony should be admitted upon another trial. If these wounds could not be inflicted by the hand or fist, but could be administered by some hard substance, then it was material testimony, and such shorthand rendering of the facts as justified its going before the jury for their consideration. There was no contention in this case there was any hard substance used by White as far as the state is concerned; the appellant’s theory being that the wounds were inflicted upon him by some hard substance, and not with the fist or hand of White. It is almost, if not quite, an inevitable proposition from the facts in this record that there was nothing about the parties to the fight except the brass knucks with which these wounds could have been inflicted. Appellant’s contention is, which he supports by his evidence, that, when White was pulled off of him, the knucks were lying on his breast and rolled off, and White called the attention of bystanders to the fact that kuneks were seen there, and, when one of the parties picked up the knucks, he caught the hand of the party holding the knucks, and called attention to the fact. This would be strongly corroborative of appellant’s evidence to the effect that he did not have the knucks, and that they were on his breast at the time, and the state’s theory of the case is not correct and his was. Anyhow it is a matter to go to the jury, from which conclusions favorable to the defendant could be easily deduced. In this connection it may be stated that appellant could have used the knucks if he had had them, and that he inflicted no injury upon White, so far as the record goes to show, and that he was knocked down more than once by White, who got on him and was beating him when interference came and they were separated, and it was also shown in the fight the previous day or shortly before the one in question that defendant had the better of the fight, and perhaps was the stronger man of the two.

For the reasons indicated, the judgment is reversed, and the cause is remanded.  