
    HUGHES v. STATE.
    (No. 9061.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.)
    1. Witnessps <&wkey;>32l — State cannot impeach its own witness because' of statement or denial not injurious to it.
    State cannot impeach its own witness because of' mere failure to remember, refusal to testify, or failure to make out state’s case; nor when no fact or denial of fact injurious to state is stated.
    2. Witnesses <&wkey;>380(5) — Admission of grand jury foreman’s impeaching testimony as' to state’s witness’ identification of defendant held reversible error.
    Admission of grand jury foreman’s testimony as to positive identification of defendant by state’s witness as party from whom he bought liquor held, reversible error, as putting, hurtful fact before jury under guise of impeaching witness, whose refusal, when on stand, to identify defendant as seller, was mere failure to make proof.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Luther Hughes was convicted of possessing intoxicating liquor for sale, and appeals.
    Reversed and remanded.
    J. W. Culwell and A. M. Mood, both of Amarillo, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Potter county of possessing intoxicating liquor for purposes of sale, and his punishment fixed at two years in the penitentiary.

A prosecuting witness introduced by the state said he brought liquor on the occasion mentioned, but declined to identify appellant as the man from whom he bought it. He was asked by the state if he did not tell the grand jury that' the party from whom he bought the liquor was Luther Hughes (appellant), and said that he did not think so. Thereafter the state introduped Mr. Beasley, a member of the grand jury which returned this indictment, and in his direct examination the state asked him whether or not the witness above referred-to, when before the grand jury on the 13th of June, 1924, identified the defendant, Luther Hughes, as béing the man from whom he bought the whisky. Appellant objected to this for various reasons; among others, that the state could not impeach its own witness because of the fact that he simply did not identify the appellant as the guilty party. This bill of exceptions is qualified with the statement that the district attorney claimed surprise because the witness referred to declined to positively identify appellant, and that said district attorney laid a Sufficient predicate by asking appellant if he did not positively identify defendant when before the grand jury, and that witness having denied such identification before the grand jury, the state should be permitted by the court to bring the grand jury foreman to testify for the purpose of impeaching said state witness. The learned trial judge further explains the bill by saying that in his charge to the jury he restricted the testimony of said foreman of the grand jury to impeachment purposes. The question, then, is: Was the case one in which the state night impeach its own witness?

Many authorities will be found collated in- section 164 of Mr. Branch’s Annotated P. C. sustaining the proposition that it is error to permit the state to impeach her own witness, where such witness merely fails to remember, or refuses to testify, or fails to make out the state’s case. It is stated that a mere failure to make proof is no ground for impeaching such witness. Many cases are cited explaining what is meant by failure to make proof. Scott v. State (Tex. Cr. App.) 20 S. W. 549; Bailey v. State, 37 Tex. Cr. R. 581, 40 S. W. 281; Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194; Evans v. State, 76 Tex. Cr. R. 56, 172 S. W. 795. It is stated that where a witness has once testified, the party introducing -him has a right to suppose that he will swear to the same facts on the present trial, and upon failure to do so, may inquire of the witness as to what different facts he had sworn to on a former occasion for the purpose of showing surprise at the testimony, or for the purpose of refreshing the memory of the witness; but if the object is to discredit the witness, it should not be allowed where no fact or denial of a fact injurious to the party calling him is stated. Bennett v. State, 24 Tex. App. 78, 5 S. W. 527, 5 Am. St. Rep. 875; White v. State, 10 Tex. App. 397; Binyon v. State (Tex. Cr. App.) 56 S. W. 339; Andrews v. State, 64 Tex. Cr. R. 5, 141 S. W. 220, 42 L. R. A. (N. S.) 747; Renn v. State, 64 Tex. Cr. R. 652, 143 S. W. 167; Briscoe v. State, 81 Tex. Cr. R. 419, 196 S. W. 185.

We are unable to perceive how the fact that the witness failed to identify appellant as the party from whom he brought the liquor could be the statement of a fact hurtful to the state’s case. It seems to us merely a failure to make proof, and in our opinion the admitting of the testimony of the foreman of the grand jury, placing before the trial jury the fact that witness had positively identified the defendant, was putting before the jury a hurtful and inadmissible fact under the circumstances of this case, under guise of impeachment.

For this error, the judgment will be reversed and the cause remanded. 
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