
    TURNER v. STATE.
    (No. 6325.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.)
    1. Witnesses <®=»52(7)— Use of statement by wife of accused to impeach her as witness is erroneous.
    Code Cr. Proc. 1911, art. 976,. was intended to aid the officers of the law to ascertain the facts, and, even if article 795, declaring a wife cannot testify against her husband, does not prevent an examination of the wife under the former article, it does prevent the use of the wife’s statement at the trial of accused even for the purpose of impeaching the testimony of the wife given at the trial in behalf of accused.
    2. Criminal law 3=3419, 420(7) — Testimony that interpreter stated witness identified accused is inadmissible as hearsay.
    In a prosecution for robbery of a Mexican, where accused, shortly after he was arrested, was taken before the Mexican for identification, testimony by the sheriff that at the time the interpreter stated that the Mexican identified accused was hearsay and inadmissible.
    3. Criminal law 3=31137(5) — Cross-examination by accused heid insufficient to render admissible hearsay testimony.
    The cross-examination of prosecuting witness by accused eliciting testimony that the witness first said accused was not the one who participated in the robbery, but that later he knew him, is insufficient to render admissible hearsay testimony .by the sheriff that, when accused was brought before the prosecuting witness, the interpreter stated that the witness had said accused was the man who hit him.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Earnest Turner was convicted of robbery and sentenced to imprisonment for seven years in the penitentiary, and he appeals.
    Reversed and remanded.'
    I. N. Williams, of Mt. Pleasant, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant is charged with the robbery of Hernandez, and upon conviction the penalty against him was assessed at confinement in the penitentiary for a period of seven years.

The transaction embraced is the same as has been described in the opinion of this court in the companion cases recently decided. See Hardy v. State (No. 6324) 231 S. W. 1097; Searcy v. State (No. 6323) 232 S. W. 319; Searcy v. State (No. 6322) 232 S. W. 799.

Appellant’s wife, Zora Turner, gave some important testimony supporting appellant’s defense of alibi. The state used to contradict and impeach her a written statement which she had given under oath in the presence of the justice of the peace and county'attorney. As we comprehend the record, Zora Turner, appellant’s wife, was brought before the justice of the peace and examined under the authority of article 976 of the Oode of Criminal Procedure, and in obedience to that subdivision of the statute, she made the statement which was used in evidence against the appellant for the purpose of discrediting her evidence given in support of his defense. We are of the opinion that in admitting this evidence the learned trial judge fell into error. Article 976, as we conceive it, is intended as a means of aiding the officers of the law to ascertain facts pertaining to whether an offense has been committed. Assuming that it would be no obstacle. to an inquiry under the statute of a wife of one accused of crime (article 795), in which it is declared that a wife cannot testify against the husband except in a prosecution for an offense committed against her, is an obstacle to the use of this statement of the wife upon the trial of her husband. In the case of Johnson v. State, 66 Tex. Cr. R. 586, 148 S. W. 328, we regard the principle as definitely decided. In that case the facts show that the wife of the accused was summoned by state’s attorney before the grand jury to give testimony, and that afterwards her statement there made was used to impeach her evidence given upon the trial upon behalf of her husband. Upon this error, a reversal was predicated, upon reason of authority fully set out in the opinion mentioned, which we deem it unnecessary to reiterate. Suffice it to say that in the later decision, Doggett v. State, 86 Tex. Cr. R. 98, 215 S. W. 454, a like ruling was made, and, so far as we are aware, there are no precedents to support a contrary view. The conflict between her testimony upon the trial and that contained in the statement was slight, and was explained by her as an inadvertent omission, and not a direct contradiction. Her testimony was upon the vital issue in the case and one upon which the jury might well have found in favor of the appellant, especially in view of the manner in which his identification as one of the assailants of Hernandez was shown.

Hernandez and other Mex-icans were occupying a boarding car, and, according to his testimony, were asleep in the nighttime when they were assailed by a number of negroes, and while one of them pointed a pistol at him, another took his money, and' yet another, whom he identified as the appellant, struck him with a wrench. He had not previously seen them or known them, and upon his direct examination he said that upon the night of the robbery appellant was brought before him by the sheriff and another and by him identified. The witness admitted upon cross-examination that when the appellant was brought before him he shook his head, and said “no,” but that later he knew him. We understand from the record that the time that appellant was brought before Hernandez was on the night of the robbery, and such conversation as took place was through the mediation of an interpreter named Prank, the officers and the Mexicans not speaking the same language. The sheriff on the subject testified that, when arrested, the appellant was at home in bed with his wife. The sheriff said:

“I don't know what the Mexicans said to Frank, but Frank told us the Mexican identified the negro as the one that had hit him. He said he identified Earnest Turner as the one.”

And by a companion of the sheriff, it was said:

“The Mexicans identified the negr.oes by shaking their- heads was all I know. Old Frank was there.”

Also said that, when Turner and Hardy were brought in, Hernandez identified Turner, hut could not identify Hardy, because he had his face blacked.

The evidence quoted was hearsay and inadmissible, as was also the statement by the witness that Hernandez identified the appellant. Ripley v. State, 51 Tex. Cr. R. 132, 100 S. W, 943; Turman v. State, 50 Tex. Cr. R. 7, 95 S. W. 533; Reddick v. State, 35 Tex. Cr. R. 467, 34 S. W. 274, 60 Am. St. Rep. 56; Murphy v. State, 41 Tex. Cr. R. 121, 51 S. W. 940; Clark v. State, 39 Tex. Cr. R. 152, 45 S. W. 696.

Of course, the appellant, by his conduct of the case, might have rendered it admissible, but we discern nothing in the record showing that he did so other than the cross-examination mentioned, and that we regard as insufficient. Upon this point the case of Clark v. State, supra, appears directly in point.

For the errors pointed out, the judgment of the trial court is reversed, and the cause remanded. 
      (JfejFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 232 S.W. — 51
     