
    HIGHTOWER v. STATE.
    (No. 8906.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.)
    1. Criminal law <®=»9I8(2) — Refusal of new trial sought on ground that unpardon'ed convict testified against accused held error.
    Refusal of new trial sought because witness testifying against accused was unpardoned convict held reversible error, where information as to disqualification of witness was unknown to accused or his counsel, and there was no showing of lack of. diligence.
    2. Homicide <&wkey;174(6) — In murder prosecution, testimony of sheriff that he found Winchester, shotgun, and two pistol scabbards in house of accused held improperly admitted.
    In murder prosecution, where deceased was admittedly shot by accused with pistol some 15 miles from latter’s home, testimony of sheriff as to finding Winchester, shotgun, and two pistol scabbards in home of accused on searching it held improperly admitted.
    3. Homicide &wkey;>l63(2)~In murder prosecution, testimony that accused had unmercifully beaten former wife and intimidated) her with pistol some ten years previous held improper.
    In prosecution for murder, testimony of former wife of accused that some 10 years prior, when she had begged accused for their children, he had beaten her unmercifully, used: pistol to intimidate her, and forced her to crawl away from his home like a dog held improperly admitted.
    Commissioners’ Decision.
    Appeal from District Court, Brazos County; W. C. Davis, Judge.
    
      ■ John Hightower was convicted of murder,' and he appeals.
    Reversed and remanded.
    P. L. Henderson, of Bryan, and Bowers & Bowers, of Caldwell, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. ■ Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is murder, and the punishment is 15 years in the penitentiary.

The hilling occurred in the city of Bryan, and the parties to the transaction were both negroes. The state’s testimony shows an unjustifiable hilling, and is sufficient to show that it was done upon malice. The appellant defended on the theory that the deceased had carried his daughter away from home as he believed for immoral purposes, the testimony .tending strongly to show that the daughter of appellant was of rather weah mind. The state’s testimony showed that after tahing the daughter of appellant away from her home the deceased had married her, but the appellant' disclaimed knowledge of said marriage, and on the contrary testified that he did not believe that they had been married at the time of the killing. The state introduced in evidence the witness Jerry Shorter, who testified that he told appellant prior to the killing that deceased and his daughter had married, and also gave in evidence other facts which impinged upon the theory offered by the, appellant which, if true, might have reduced the killing to manslaughter.

In his motion for new trial, appellant shows by the affidavit of himself and that of each of his attorneys that after the evidence was closed and the jury had retired to consider their verdict he discovered for the first time that the witness Jerry Shorter was an ex-convict and unpardoned. The record shows that this information was unknown to the appellant or to his counsel at the time of the trial, and there is no suggestion in the record that appellant was lacking in diligence in discovering this matter earlier. As presented to this court, the record- affirmatively shows that the witness was an unpardoned convict at the time his testimony was given in this case. Under this condition of the record .we think the learned trial court should have granted a new trial. We -find nothing in the record that was in any wise sufficient to put the appellant on notice that said witness was an ex-convict and nothing that would have required an inquiry into this matter on his part. The testimony given by this witness as above stated was in contradiction of appellant’s theory of the case and was material in establishing the theory offered by the state. At the time of this trial an unpardoned convict was not permitted to testify against a party. We think that a new trial should have been granted. Hayes v. State (No. 9808) 279 S. W. 870, decided by this court March 3, 1926; Love v. State, 272 S. W. 778, 100 Tex. Cr. R. 211; Barber v. State, 223 S. W. 457, 87 Tex. Cr. R. 535.

Complaint is also made at the court’s action in permitting - the sheriff of Brazos county to testify over the objections of the defendant that he searched the defendant’s house in Burleson county, and that he found in said house a Winchester, a shotgun, and two pistol scabbards. We fail to see how this testimony in any wise shed light on the transaction under investigation. The killing occurred in the city of Bryan, some 15 miles from where the appellant lived, and occurred in the presence of eyewitnesses who testified on the trial of the case. There was no controversy as to the fact that appellant was armed at the time the killing occurred, and that the killing was' done with a pistol used by appellant at the time. To show that there were afterwards found in his home, which was, as above stated, some 15 miles from the scene of the killing, various firearms may have prejudiced appellant’s ease before the jury, and we think was inadmissible for any purpose.

Complaint is also made at the court’s action in permitting Emma Gaston, a former wife of the appellant, to testify that while living with him 8 or 10 years prior to the killing she had begged him for the children of herself and defendant, and that defendant had beaten her unmercifully, and had used a pistol to intimidate her, and that he had forced her to crawl away from his home like a dog. This testimony was admitted over the objection of the appellant, but the court later attempted to withdraw it from the consideration of the jury. Owing to the very inflammatory nature of this testimony we doubt the ability of the court to cure the error in its admission by attempting to withdraw it. That the testimony was clearly inadmissible does not admit of doubt. Singleterry v. State, 273 S. W. 595, 100 Tex. Cr. R. 399, and the many cases there cited. See, also, Bryant v. State, 271 S. W. 610, 99 Tex. Cr. R. 600.

As the case must be reversed because of the court’s failure to grant a new trial on account of the fact that the ex-convict was permitted to testify against the appellant, it is perhaps unnecessary to decide that the other two questions above discussed are in themselves reversible error; but, for the reasons stated in the first complaint discussed herein, 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 Apipeals and approved by the court.

MORROW, P. J., absent. 
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