
    SHANNON v. STATE.
    (No. 10098.)
    (Court of Criminal Appeals of Texas.
    June 2, 1926.)
    Witnesses &wkey;>67 — Exclusion of testimony of accused’s counsel that in private conversation witness against accused made different statement held error, notwithstanding witness talked to attorney because instructed by court (Vernon’s Ann. Code Cr. Proc. 1916, art. 788).
    In robbery prosecution, where witness testified that robbed person stated accused robbed him, exclusion of testimony of accused’s counsel, as witness under Vernon’s Ann. Code Cr. Proc. 1916, art. 788, that witness told him that robbed person had not identified accused, was error, notwithstanding witness before sworn talked to attorney because instructed to do so by court.
    ij&wkey;For other cases see same topic and KEY.-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    Earl Shannon was convicted of robbery, and he appeals.
    Reversed and remanded.
    Davis, J ester & Tarver, of Corsicana, C. H. Machen, of Mexia, and Gibson, Dovett & Lovett, of Corsicana, for appellant.
    Sam D. Stinson, State’s Atty., of Aus'tin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is robbery, and the punishment is five years in the penitentiary.

The state’s testimony is sufficient to support the verdict, while on the other hand the defendant introduced testimony which, if true, is entirely sufficient to show that he was not in any wise connected with the robbery. The record shows that one Phipps and A. L. English were partners and as such owned the store that was robbed. Phipps was not present at the time of the robbery, but the store was in charge of English, and Phipps came to the store about fire minutes after the robbery is alleged to have occurred. On the trial of the case, Phipps testified that later on in the night English told him that’ Shannon, the appellant, was one of the parties who held him up. Eor the purpose of contradicting the testimony of Phipps as to what English told him, appellant offered to prove by W. A. Tarver and T. W. Lovett, each of whom was counsel in the case, that they had talked to Phipps before announcing ready for trial, and that Phipps had told them that English had wholly failed to identify any of the parties who robbed him, save and except H. A. Clements. The state objected to this testimony and the court excluded it. In Qualifying the bill as to why it was excluded, the court says that he considers it an improper rule of evidence for an attorney to privately talk to a witness after the witness has been instructed by the court to talk to said attorney, and then for said attorney to take the witness stand and impeach the witness as to what was said in the private conversation between them. It is proper to say that the record further shows that Phipps refused to talk to appellant’s attorneys until he was instructed to do so by the court, but that after being so instructed he did talk to said attorneys, and that at the-time of so doing he had not been sworn as a witness in the case. We think the court was clearly in error in excluding this testimony. Article 788, Vernon’s Ann. Code Or.' Proc. 1916, provides that all persons are competent to testify in criminal actions except the following:

“1. Insane persons, who are in an insane condition of mind at the time when they are offered as witnesses, or who were in that condition when the events happened of which they are called to testify.
“2. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation"of an oath.
“3. All persons who have been or may be convicted of felony in this State, or in any other jurisdiction, unless such conviction has been legally set aside, or unless the. convict has been legally pardoned for the crime of which he was convicted. But no person who has been convicted of the crime of perjury or false swearing, and whose conviction has not been legally set aside, shall have his competency as a witness restored by a pardon, unless such pardon by its terms specifically restore his competency to testify in a court of justice.”

We find nothing in this statute which by any construction of it could include attorneys as being among those who are declared tb be incompetent to testify. On the contrary, their right to do so is expressly upheld by Mr. Wharton in his work on Criminal Evidence (section 385).

Believing that the court was in error in excluding this testimony, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved'by the court.  