
    KIRKLAND v. STATE.
    (No. 5651.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1920.)
    1. Witnesses @=255(9) — Privilege to refresh MEMORY CANNOT BE USED TO INTRODUCE TESTIMONY GIVEN ON PREVIOUS OCCASION.
    Though a witness in a proper case may be permitted to refresh his memory by referring to a record of his testimony on a former occasion, the privilege is not to be used as a means of getting before the jury the testimony given by him on 'the previous occasion, which would be hearsay.
    2. Witnesses @=256 — Testimony of witness BEFORE GRAND JURY, USED TO REFRESH MEMORY, IS AVAILABLE TO DEFENDANT FOR REEXAMINATION.
    If testimony of a witness before the grand jury was used by the prosecuting attorney to refresh his memory, it should have been made available to defendant in the re-examination of the witness.
    3. Homicide @=169(1), 171(1) — Testimony of BYSTANDER AS TO CONDUCT AND LANGUAGE OF PARTIES ADMISSIBLE.
    In a prosecution for assault with intent to murder resulting in conviction of aggravated assault, testimony of an eyewitness as to the conduct and language of defendant and the assaulted party at the time of the conflict, and immediately before, was admissible as original testimony against defendant.
    
      Appeal from District Court, Archer County; Wm. N. Bonner, Judge.
    R. C. Kirkland was convicted of aggravated assault, and he- appeals.
    Reversed, and cause remanded.
    W. E. Eorgy, of Archer City, and Taylor, Allen & Taylor, of Henrietta, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

Under an indictment for an assault with intent to murder, the appellant was convicted of an aggravated assault, and his punishment fixed at a fine of $500 and SO days’ confinement in jail.

The appellant and the injured party both testified, giving conflicting testimony relating to the incidents immediately surrounding the transaction. The state used also an eyewitness by the name of Wilson, whose testimony, given upon the trial, tended to corroborate that of the injured party. This witness had been before the grand jury, and his testimony therein reduced to writing. It appears by bill of exceptions that in the cross-examination of - the appellant, the state’s counsel read from ■' this written statement in the presence and hearing of the jury, stating that he was reading from the testimony of the witness Wilson, given before the grand jury upon an investigation of the offense with which the appellant was charged, and was doing so for the purpose of refreshing his, the state’s attorney’s memory, and' to lay a predicate to impeach the appellant. Objections were addressed to this proceeding, among others that, it appeared that the statement was - made in the absence of the appellant, which resulted in the use of hearsay evidence against him. This and other objections urged were overruled. Counsel reguest-ed that the writing be furnished him in order that he might have it before him in re-examining the witness. This reguest was refused upon the ground that the instrument had not been offered in evidence. To this exception was duly reserved.

At the time this proceeding took place, Wilson' had' not been used as a witness. His credibility had not been then, and was not subseguently, attacked, and no occasion had arisen recognized, by law as sufficient to authorize the use of-his prior statement to support him. The effect of the procedure was to let the jury know What Wilson had testified before the grand jury, and it was followed up by putting Wilson on the stand that he might give the same testimony. The obvious effect was to show that his statement before the grand jury coincided with his statement on the trial. While a witness in a proper case may be permitted to refresh his memory by referring to a record of his testimony on a former occasion, this privilege is not to be used as a means of getting before the jury the testimony given by him on the previous occasion, which would obviously be hearsay. Spangler v. State, 41 Tex. Cr. R. 430, 55 S. W. 326; Dunn v. State, 212 S. W. 513; McLin v. State, 48 Tex. Cr. R. 551, 90 S. W. 1107.

The use of the former testimony of the witness by the prosecuting attorney, for the purpose as stated in this case of refreshing his memory, would be subject to the same limitations, and clearly a sense of fairness would reguire that, if the statement was used by him for the purpose indicated, it should be made available to the accused in his conduct of the re-examination of the witness. This was the holding of this court in Green v. State, 53 Tex. Cr. R. 493, 110 S. W. 920, 22 L. R. A. (N. S.) 706, wherein will be found an elaborate statement of the reasons and the citation of authorities supporting the correctness of the ruling. On the subject it is said in the notes in 22 L. R. A. (N. S.):

“The propriety of allowing an adverse party to inspect for the purpose of cross-examination any memorandum used by a witness to refresh his memory upon the matters as to which he is testifying appears to be universally conceded by the courts.”

There seems to have been no occasion for laying a predicate to impeach the appellant. ■ Wilson’s testimony related to the conduct and language of the accused and injured party at the time of the conflict, and immediately preceding it, all of which was admissible as original testimony against the appellant; and reading the testimony of Wilson before the grand jury to the same facts served no legal purpose, and was calculated to prejudice the appellant’s case. See Christian v. State, 40 Tex. Cr. R. 671, 51 S. W. 903.

The sufficiency of the evidence is assailed. In view of another trial, we Will not discuss it.

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