
    RED v. STATE.
    (No. 9516.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.)
    1. Witnesses <&wkey;>52(7), 383 — Testimony to impeach wife of accused inadmissible.
    In prosecution for assault with a prohibited weapon on father-in-law, where wife’s testimony was in support of accused, and she denied on cross-examination that accused was cruel to her, testimony of statements made by her as to leaving accused because he was cruel held, inadmissible for impeachment purposes, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 795.
    2. Criminal law &wkey;>4l9, 420(1) — Testimony that wife of one accused of assaulting father-in-law tried to run away inadmissible.
    In prosecution for assault with a prohibited weapon against father-in-law, testimony of third person, in response to question whether accused and his wife had had fights and whether she- had come to her father for protection that she had tried to run away three times held hearsay and inadmissible.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Henry Red was convicted of an assault with a prohibited weapon, and he appeals.
    Reversed and remanded.
    Geo. W. Johnson, of New Boston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is assault with a prohibited weapon; punishment fixed at confinement in the penitentiary for a period of two-years.

Charley Scott, father-in-law of the appellant, was the subject of the alleged assault. It took place at the home of Scott in the presence of his wife and daughter; the lat: ter being the wife of the appellant. According to the testimony, appellant’s wife had gone to the home of her father at nighttime. He later went there, and requested her to go home with him. Scott interfered, and harsh words were exchanged, which were followed by the wounding of Scott by the discharge of a pistol by the appellant. At the time of the shooting, according to the state’s theory, Scott was reaching for his shotgun, appellant having previously exhibited a pis-tob According to the appellant’s theory and testimony, the shot was fired while Scott had possession of his shotgun and had twice snapped it at the appellant. His theory is supported by his'testimony and by that of his wife. She described the occurrence, and said that, after she and the appellant had been playing at home, she had gone to; her father’s house without notifying the appellant ; that when he ashed her to go home she demurred on account of her foot hurting her; and that it was during the discussion of the matter that Scott, interposed. The state asked her questions endeavoring to elicit from her the admission that on former occasions the appellant had been abusive of her. This she denied.

Prom bill of exceptions No. 1 it appears that the state, over the objection of the appellant, elicited from a state’s witness the following testimony:

“She (defendant’s wife) told me the reason she would leave him (defendant) he would whip her. I don’t know how many times she told me that. She ran off two or three times and came by our house. She would just be sad, and I asked her where she was 'going, and she would say, ‘I am running off,’ and would tell me she was going because he (defendant) whipped her.”

In qualifying the bill, the court said that this testimony was received after proper-predicate had been laid to impeach her by proof of declarations of the witness; that the testimony was limited to impeachment purposes.

We fail to perceive any issue in the case upon which it would have been proper to impeach the appellant’s wife by the statement quoted. This is true, conceding that the predicate was laid, for the reason that it would be an impeachment apparently upon an immaterial issue and an irrelevant and prejudicial one, in that it was evidence of a collateral offense. Moreover, the impeaching testimony was, under the facts as developed in the case, contrary to the statute, because “the husband and wife may, in all criminal actions, be witnesses for each other; but they^ shall, in no case, testify against each other, except in a criminal prosecution for an offense committed by one against the other.” See Vernon’s Tex. Crim. Stat. yol. 2. art. 795. The prosecution in the present case was not for an offense committed against the wife, but for an offense alleged to have been committed against her father. She was not available to the state to prove that on former occasions the appellant had whipped 'her.

Bill No. 2 complains of the fact that it was shown by the witness, Martha Scott, that she was asked if it was not a fact that the appellant had had fights and fusses with his wife, and that she came there two or three times and asked her father to protect her. To this she replied: “Ida tried to run away three times.” It is conceived that this bill reflects the introduction against the appellant of hearsay testimony which seems to have been within none of the exceptions to the rule excluding that character of evidence.

The complaint of the indictment, we think, is not tenable.

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