
    GREEN v. STATE.
    
      (Court of Criminal Appeals of Texas.
    March 5, 1913.)
    1. Cbiminal Law í§ 541) —- Reception of Evidence — Testimony of Absent Witness —Rebuttal.
    Where the state in a prosecution for homicide showed that, on a prior trial, it had introduced an eyewitness who was then absent, to raise an inference that' the testimony of such witness was favorable to the state, the defendant in rebuttal was entitled to introduce the testimony previously given by the witness in order to prove that the testimony had not such effect.
    • [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1231; Dec. Dig. § 541.]
    2. Cbiminal Law (§ 541) — Evidence—Absent Witness — Former Testimony.
    Former testimony of an absent witness in general cannot be shown at a subsequent trial in the absence of proof that the witness was either dead, out of the state, or that his presence was prevented by defendant, except to rebut an inference that his testimony was favorable to the state, on the state proving that it had tendered him on the prior trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1231; Dec. Dig. § 541.]
    3. Witnesses (§ 372) — Cross-Examination —Bias—Prejudice.
    In a prosecution for homicide, the court did not err in permitting the state on cross-examination of an important witness for accused to ask him if he had not gone early on the morning after the killing to certain others, and asked them if they had heard any one say that witness was implicated in the cutting of deceased in order to prove his bias and prejudice.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dee. Dig. § 372.]
    4. Homicide (§ 310-) — Issues—Aggravated Assault.
    Where, in a prosecution for homicide, "it was shown that defendant was much smaller and younger than deceased, that it was not until ¿'ter defendant had been knocked down, and was being beaten by deceased, that he pulled out a knife and cut him, and there was no direct evidence that the knife was a deadly weapon, defendant having testified that he intended only to cut deceased so that he would release him, and did not intend to cut him in a fatal place or to kill him, the evidence raised the issue of aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Bill Green was convicted of murder, and be appeals.
    Reversed and remanded.
    L. W. Dalton, of Plainview, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otuer cases see same topic and section NUMBER in Dec. Dig. & Am.-Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Upon a charge of murder, appellant was convicted of manslaughter, and his penalty fixed at the highest.

As this case must be reversed, we do not comment upon the evidence, nor state it other than is necessary to decide the questions raised. This was the fourth trial of this case; the other three resulting in hung juries.

In all three of the other trials the state had produced and had to testify for it the witness Ed Cope, who -was absent at this trial. Said Cope was an eyewitness to the killing. It was therefore permissible for the state to show that it had theretofore had and introduced him as a witness. The object and purpose of this, however, inferentially at least, was to show that the testimony of this witness, if present, would be again favorable to the state. The appellant denied that the testimony of this witness was favorable to the state, and contended that it was favorable to him. As the state had proved as above stated, it was competent for the appellant to prove the testimony of this witness, and thereby show it was not favorable to the state, but, if anything, in his favor. It would certainly be unjust to the appellant to permit the state to show the absence of a witness, and that on all former trials it had him present and used his testimony in behalf of the state, and thereby indirectly, at least, tend to show his testimony was for the state and against appellant, and not permit the appellant to prove to the contrary. So that, while the court did not err in admitting the testimony of Mr. Dalton, having admitted that, it did err in not permitting the defendant to prove the testimony of the absent witness, and thereby rebut the inference in favor of the state. Sweeney v. State, 146 S. W. 888, 889.

The mere fact that the witness was absent would not otherwise authorize his former testimony to be reproduced, unless and until he was shown to be either dead or out of the state, or his presence prevented by appellant, except for the purpose, and under the circumstances above stated. Robertson v. State, 63 Tex. Or. R. 216, 142 S. W. 533. The evidence does raise the issue of manslaughter, and the court did not err in charging thereon. The appellant having been acquitted of murder in the first and second degrees, in another trial it will be necessary to charge on manslaughter.

Bill Doss was an important witness for the defendant, and gave material testimony in his favor. The court did not err in permitting the state to ask and prove by him on cross-examination that the early morning after the killing the night before he had-gone to and asked Will Prather and others if they had heard anybody say that he was implicated in the cutting of the deceased. It is always permissible to prove the bias and prejudice of any witness by himself, and, if denied by him, by another. This evidence tended to show that the witness Doss recognized that his connection with the fatal difficulty was such as to show that he was biased in favor of appellant.

The appellant contends that the evidence raised, and the court should have charged on, aggravated assault. In our opinion his contention is correct. The uncontradicted evidence shows that the appellant was a young fellow about 17 years old, rather small in stature, at least so when compared, with the deceased, and was a year or more younger than the deceased, weighed only a little more than 120 pounds, while the deceased weighed considerably more; that the deceased was a much larger, taller, and stronger man than the appellant. It ’further shows that some ill feeling had. arisen between the two parties. The deceased, in a quiet and peaceable manner, just before the killing, invited the appellant out, telling him that he wanted to see him. Some of the witnesses say that he invited appellant alone; others, that he invited appellant and said Doss. At any rate, the three persons went out of the yard at the gate of the house where they were attending a party, some little distance to a well, where the three persons stopped. Cope, the other eyewitness, followed within some 15 feet of them, and he also stopped. The testimony also shows that, after some words briefly between them, deceased struck, and knocked appellant down and jumped on him and began beating him. Among other things, appellant testified that, after deceased knocked him down and got on him, “he hit me four or five times. When I fell, I ran my hand in my pocket, and got my knife to cut him off of me. I did not intend to kill him; he was so much bigger than I was, I just wanted to cut him off of me. My intention was just to make him get off of me. I did not intend to cut him in any fatal place; did not intend to kill him.” There is no direct evidence in the record that the knife with which appellant cut and killed deceased was a deadly weapon. While it was identified and intrQduced in evidence, the record in no way discloses its size, nor directly that it was a deadly weapon, or other than an ordinary pocketknife. The mere fact that appellant testified that he did not intend to kill the deceased, and that he intended to merely cut him to make get off of him, and- that he did not intend to cut him in any vital point, might not of itself reduce the killing to aggravated assault. His intent is to be measured and determined by the jury by all the facts and circumstances in evidence as well as his testimony on this point. The facts show that he cut the deceased somp six or seven times — once in the left breast in the region of the heart, a vital point; another time he cut and severed the large artery in the thigh, another vital point. The character of the instrument with which the wounds were inflicted and the manner of its use are to be considered, as well as appellant’s said testimony, in determining his intent with which the cutting and killing was done. However, all these matters were for the jury. As stated above, in our opinion, the evidence clearly raised, and the court should have submitted, the question of aggravated assault to the jury under appropriate instructions in accordance with the testimony. Articles 1147, 1149, and 1150, P. C., and cases cited in section 434, Branch’s Crim. Law of Texas.

There is no other question raised likely to occur on another trial; so that it is unnecessary to discuss any other question.

For the errors pointed out, the judgment is reversed, and the cause remanded.  