
    STONE v. STATE.
    (No. 6691.)
    (Court of Criminal Appeals of Texas.
    March 22, 1922.)
    1. Criminal law <§=>675 — State may introduce cumulative evidence in rebuttal.
    The state may introduce cumulative testimony in rebuttal.
    2. Criminal law <§=>698(1)— Failure to object to immaterial testimony waives right to meet ft.
    Where defendant fails to object to immaterial testimony, he may be estopped to meet it.
    3. Criminal law <§==>683(1) — Rebuttal testimony need not be directed against new matter.
    In view of Code Cr. Proc. 1911, art. 718, the rule that rebuttal testimony must be directed against new matter, and not that brought in in the opening of the case, is abrogated.
    4. Criminal law <§=>l 153(1) — Refusal to hear testimony after beginning of argument not reviewed.
    It is within the discretion of the trial court to refuse to hear testimony proffered after the beginning of argument, and only when the discretion is clearly abused will the action be reviewed.
    5. Criminal law <§=>687(2) — Evidence offered after beginning of argument, where material, cannot be excluded, unless it would interfere with administration of justice.
    If testimony offered before the beginning of the argument is material and bears directly upon the main issues, the trial court cannot, in the exercise of discretion, given by Code Cr. Proc. 1911, art. 718, exclude it, unless offered under conditions which would impede the progress of the trial or in some way interfere with the due and orderly administration of justice.
    6. Criminal law <§=>396(1) — Trial court, having permitted state to introduce cumulative evidence during rebuttal, cannot deny defendant same privilege.
    The trial court, having permitted the state to strengthen its case by the introduction of cumulative evidence during rebuttal, cannot refuse to permit defendant to present cumulative evidence, directly tending to establish his innocence.
    Appeal from District Court, Grayson County; P. E. Wilcox, Judge.
    Will Stone was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Wolfe, Freeman & Wolfe, of Sherman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant appeals from a conviction of assault with intent to murder ; punishment fixed at confinement in the penitentiary for a period of two years.

That appellant, using a pistol, shot the prosecuting witness, Moss, twice is a conceded fact. The evidence touching the attending circumstances was conflicting, the state’s theory being that the appellant accosted the injured party, asked him whether he had made a certain statement, and, receiving a negative reply, he, using an oath, drew his pistol, which first snapped, but afterwards fired twice, striking Moss in the shoulder; that in the opening of the state’s case the prosecuting witness testified that he was unarmed, and made no hostile demonstration against the appellant. This theory, upon the opening of the case, was supported by another eyewitness introduced by the state.

After proving the character of the wounds, the state rested. The appellant testified, in substance, that he had been informed that the words and conduct of Moss towards the sister of appellant had been insulting; that he also had been informed that Moss had threatened to kill the appellant, and, acting upon this information, he armed himself and sought an interview; that the information had come to him directly from his sister and from others; and when Moss was taxed with it in the interview which appellant sought he denied it, whereupon the appellant called him a “liar,” and Moss made a demonstration, drew his pistol, and fired; that the appellant, upon seeing the demonstration, drew his pistol and fired, the shots being simultaneous. Moss fled into a drug store, and while retreating was endeavoring to shoot the appellant. He introduced other witnesses, verifying the insulting words and conduct and threats and their communication to the appellant.

After resting his case, the state introduced a number of eyewitnesses, giving testimony conflicting with that of the appellant and corroborative of that given by the state’s prosecuting witness in opening the case. These witnesses testified to facts which were cumulative of the state’s opening testimony, both as to the manner of the shooting by the appellant and to the unarmed condition of the prosecuting witness Moss. They went into detail touching the surroundings, conduct of bystanders, the description of the premises, and the prosecuting witness was recalled, and in addition to denying the insulting words and conduct and threats reiterated his statement originally made, describing the difficulty and declaring that he. was unarmed.

Upon the state’s closing, the appellant offered the testimony of three eyewitnesses, who admittedly were present at the time of the difficulty, and would have testified that Moss was armed with a pistol and fired at the appellant, and in detail would have corroborated the testimony of the appellant and supported his theory as advanced by his evidence. The effort to introduce this testimony was opposed by the state, and the court excluded it. In qualifying the bills excepting to this, he said that the case had been previously tried, and the parties knew what testimony the witness would give; that the witnesses were present; that after the appellant rested, the state introduced other witnesses without objection, whose testimony was in part cumulative to that first introduced, and partly in rebuttal of appellant’s testimony; that at this state of the record the proffered testimony was cumulative of appellant’s testimony in chief, and not in rebuttal of new matter brought out by the state. The soundness of this rule is called in question in an appropriate manner in this appeal.

We infer from the language of the court in qualifying the bills that he proceeded upon the theory that, if appellant had objected to the cumulative testimony which the state introduced after it rested, it might have been properly excluded, and that, having failed to object to its introduction, he is not in a position to introduce evidence conflicting with it. We are not aware of any rule that would render cumulative testimony introduced by the state subject to objection. If it had been immaterial testimony, the appellant, failing to object to it, might be estopped to meet it. Zimmer v. State, 64 Tex. Cr. R. 117, 141 S. W. 781, and cases therein cited. On numerous occasions, it has been held that the complaint by the accused of the introduction of cumulative testimony in rebuttal is not violative of his rights nor contrary to any law'of the state. Montgomery v. State, 68 Tex. Cr. R. 78, 151 S. W. 813; De Lerosa v. State. 74 Tex. Cr. R. 604, 170 S. W. 312; Thompson v. State, 35 Tex. Cr. R. 511, 34 S. W. 629; Graham v. State, 57 Tex. Cr. R. 105, 123 S. W. 691; Raleigh v. State, 74 Tex. Cr. R. 484, 168 S. W. 1050.

That rebuttal testimony must be directed against new matter, and not that brought in in the opening of the case, is abrogated by the statute in this state. Morris v. State, 30 Tex. App. 95, 16 S. W. 757; Code of Crim. Proc. art. 718.

It is within the discretion of the trial court to refuse to hear testimony proffered after the beginning of the argument, and only when the discretion is clearly abused will the action be reviewed. Code of Crim. Proc. art. 718; Toler v. State, 41 Tex. Cr. R. 659, 56 S. W. 917; and other cases collated in Vernon’s Texas Crim. Statutes, vol. 2, pp. 396, 397.

Concerning the testimony offered before the argument begins, the discretion of the court is not so broad. De Lerosa v. State, 74 Tex. Cr. R. 604, 170 S. W. 313. In fact, under the latter circumstances, if the proffered evidence is material and bears directly upon the main issues in the case, it would not be within the discretion of the court to exclude it unless it was offered under conditions which would impede the progress of the trial or in some way interfere with the due and orderly administration of justice. Hewitt v. State, 10 Tex. App. 506; Mancha v. State, 57 Tex. Cr. R. 335, 123 S. W. 129; Elsworth v. State, 52 Tex. Cr. R. 1, 104 S. W. 903.

As applied to the instant case, the court having permitted the state to strengthen its ease by the introduction of cumulative evidence pointing to the guilt of the appellant, the due administration of justice demanded that a like privilege should not be denied the appellant to present material testimony directly tending to establish his innocence.

The judgment is reversed, and the cause remanded. 
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