
    DOBBS v. STATE.
    (No. 7522.)
    (Court of Criminal Appeals of Texas.
    March 14, 1923.
    Rehearing Granted May 23, 1923.)
    I.Criminal law <&wkey;l 153(5)— Excusing witnesses from rule matter of discretion.
    Excusing witnesses from the rule, under Code Cr. Proc. 1911, art. 719, is discretionary, and such discretion is not reviewable in the absence of abuse of discretion; and ordinarily It is not an abuse of discretion to excuse from the rule an officer of the court who is necessary to the transaction of its business in the conduct of the trial, unless injury is shown.
    2. Witnesses <&wkey;397 — Impeaching evidence not available as original evidence.
    Where a witness is impeached by .showing a statement out of court contradicting testimony in court, such an impeaching statement is not original evidence, but available only to affect the credibility of the witness.
    3. Witnesses <&wkey;388(4) — Hearsay evidence that accused had struck his wife held inad- - missibie in absence of predicate for impeachment.
    On trial for aggravated assault, where prosecutrix, accused’s wife, at the trial denied the assault, the admission of testimony of another witness that prosecutrix had told him that her husband struck her on the occasion in question, and that he had also struck her at other times, without support by a predicate for impeachment, and against the objection that it was hearsay, held error.
    Appeal from Gray County Court, John B. Ayres, Judge.
    Homer .Dobbs was convicted of aggravated assault, and appeals.
    Reversed and remanded.
    Hill & Ledbetter; of McLean, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for aggravated assault; punishment fixed at confinement in the county jail for a period of 30 days. The appeal cannot be entertained, for the reason that the record contains no notice of appeal.

The appeal is therefore dismissed.

On Motion -for Rehearing.

. The record having been perfected showing that notice of appeal has properly been given, the appeal is reinstated.

Am aggravated assault is charged to have been committed upon Mrs. Homer Dobbs, she being a female and the appellant being an adult male. Mrs. Dobbs was called for the state, and testified that appellant had made no assault upon her. She claimed that she had received some injuries through án accident in the absence of the appellant; that they had subsequently had a quarrel, and while enraged at him she had called the officers.

At the beginning of the trial, in accord with article 719,'C. C. P., appellant requested that the witnesses be placed under the rule, ■and especially demanded that this include the witness Black, who was a deputy sheriff. The court denied this request, and permitted Black to remain in the courtroom and listen to the testimony, and afterwards impeach her by a contradictory statement. When Mrs. Dobbs testified that the appellant had made no assault upon her, she was asked if she had not made a certain statement tp Black, and, upon her denial, Black was called to testify that she had told him that the appellant had struck her and inflicted injury upon her. This method of impeaching Mrs. Dobbs was also made the subject of objection, for the reason that she was a state witness, and there was no claim upon the part of the state’s counsel that they were surprised at' her testimony, and that the procedure was in effect supplying testimony by the method of impeachment.

Another witness was called who testified that Mrs. Dobbs had told him that her husband struck her on the occasion in question, and that he had also struck her at other times. No predicate for impeachment supported this testimony, but it was admitted over the objection that it was hearsay. The testimony was not only hearsay, but it put into the case the prejudicial fact that appellant had struck his wife on several other occasions. It was within the judicial discretion of the court to make exceptions to the. rule excluding witnesses, and', in the absence of abiise of this discretion, the action of the court will not be reviewed. See Smith v. State, 70 Tex. Cr. R. 68, 156 S. W. 645. Ordinarily it is not an abuse of discretion to excuse from the rule an officer of the court who is necessary to the transaction of its business in the conduct of the trial unless injury is shown. Collins v. State (Tex. Cr. App.) 178 S. W. 345. In the instant case there seems to have been no sufficient reason for exempting the officer from the rule. It affirmatively appears in the bill that his presence in court was not necessary to the transaction of the court’s business. The testimony he gave was obviously damaging to the appellant, in that it tended to supply criminative evidence which the main state’s witness refused to give. The circumstances may have been such as authorized the state to impeach the witness Mrs. Dobbs by proving that she had made a- statement out of court contradictory to that given in her testimony. Such impeaching statement, however, was not original evidence, but was available only to affect her credibility as a witness. Floyd v. State, 29 Tex. App. 356, 16 S. W. 188, and other cases collated by Mr. Branch' in his Ann. Tex. P. 0. § 164, p. 96.

The hearsay testimony to which we have referred, and which was not supported by predicate for impeachment, -was admitted by the court without qualification as original testimony. It was the same, in substance, as the impeaching testimony given by the witness Black. It is likely that it was all appropriated by the jury as original testimony showing the guilt of the appellant. The hearsay testimony that was not made admissible by predicate for impeachment was clearly improperly received, and was obviously prejudicial.

The other matter mentioned, that is, excusing Black from the rule, and permitting him to support the state’s case by impeaching the state’s witness, was of very doubtful propriety.

Because of the hearsay testimony mentioned, the judgment is reversed, and the cause remanded. 
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