#### HUMPHRIES v. STATE.

No. 14313.

Court of Criminal Appeals of Texas.

Nov. 4, 1931.

T. H. McGregor, of Austin, and P. E. Campbell and J. B. Dibrell, both of Seguin, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for three years.

Deceased, John Wear, died from gunshot wounds inflicted by appellant. Deceased had taken some race horses to a county fair which was being held in the town of Seguin. Appellant had been employed by deceased to aid him in entering the horses in the races that were being held on the fair grounds. Appellant had decided to leave deceased and go with another owner of race horses. Deceased had in his possession in a trunk some harness which appellant claimed belonged to' him. The difficulty in which deceased lost his life arose when appellant advised deceased that he was going to leave him, and that he wanted to take his harness with him. According to the version of sfate’s witnesses, deceased was using a pitchfork in placing some hay in the bed of a truck, when appellant approached and asked deceased’s permission to take his harness out of the trunk in which deceased had placed it. Deceased refused to permit appellant to open the trunk, telling appellant that he was going to-take the harness back to Austin. Appellant stated to deceased that he was not going back to Austin with Mm, and that he wanted his harness. Deceased again told appellant that he could not have the harness. Appellant stepped back a few steps, secured a pistol, and approached deceased. Deceased told appellant to put the pistol down. The wife of deceased approached appellant and he told her to get back. She stepped back and appellant fired three shots in the direction of deceased. Two of the shots took effect. Deceased ran a short distance from the scene of the difficulty, and, falling to the ground, expired before physicians could be summoned. According to the testimony of state’s witnesses, deceased in no manner threatened appellant, and made no demonstration toward him prior to the firing of the fatal shots by appellant.

Appellant and his witnesses testified that deceased, in declining to permit appellant to take his (appellant’s) harness, cursed appellant and advanced upon him with a pitchfork; that appellant secured his automatic pistol out of a trunk and fired upon deceased two or three times. Appellant testified that he believed deceased was going to kill him and that he fired at deceased in order to save his own life. He said that he had known of many difficulties in which deceased had engaged, some of which he described to the jury. Other witnesses testified to having seen deceased engaged in several fights. Many witnesses tes*117tified that deceased bore the reputation of being a violent and dangerous man. These witnesses bad known deceased for many years. The state offered no witnesses to the contrary.

Bill of exception No. 2 presents the following occurrence: Appellant’s witness Oscar Newburg bad testified to some of tbe circumstances surrounding the homicide. He bad also stated *that the*general reputation of deceased for being a violent and dangerous man was bad. He said that be bad known appellant in tbe city of Austin since 1914, but did not undertake to testify concerning appellant’s reputation in any respect. On cross-examination, tbe witness was asked by tbe district attorney if it was not a fact that appellant was in tbe penitentiary in 1916. Appellant objected to tbe question on tbe ground that it was immaterial, improper, prejudicial, and placed before tbe jury the fact that appellant bad been in tbe penitentiary. When appellant’s objection was interposed, tbe court asked tbe district attorney whether or not it was tbe purpose of tbe testimony to show that appellant had been in tbe penitentiary. Tbe district attorney replied that be desired to impeach tbe witness, if be could, on bis statement that be bad known appellant for 16 years. Tbe court then stated to tbe jury: “Tbe question as to whether or not this man had been in the penitentiary in 1916 will not be considered by you for any purpose whatever;'it is no evidence.” After so instructing tbe jury, tbe court inquired of tbe district attorney, in tbe presence and hearing of tbe jury, whether be (tbe district attorney) knew' that appellant bad been in tbe penitentiary. In tbe presence and bearing of tbe jury tbe district attorney replied: “Yes, sir.” He further stated to tbe court in the presence and bearing of tbe jury that be bad “the paper in bis hand and that be knew be was in tbe penitentiary in 1916.” Appellant promptly interposed objection to the statement of the district attorney. Tbe court certifies in the bill of exception that tbe conversation between tbe court and the district attorney took place within a few feet of tbe jury, and in their presence. At tbe stage of the proceedings disclosed by the bill of exception appellant bad not taken tbe stand in his own behalf. Later he did testify, but the district attorney made no attempt to show that be bad served a term in tbe penitentiary.

 It seems useless to discuss whether, under appropriate facts, tbe error of asking prematurely if tbe accused bad not been confined in tbe penitentiary would have been rendered harmless by *the*fact that tbe accused later took the witness stand and placed himself in a position where proof that be bad been convicted of a felony would have been admissible as affecting bis credibility. Such proof was not made after appellant took tbe stand, and the only way such fact got before the jury was from tbe question of tbe district attorney, backed up by bis unsworn statement that be held in bis band tbe paper showing that appellant bad been in the penitentiary, and that be knew that be was in tbe penitentiary in 1916. The district attorney, although unsworn as a witness, in effect gave testimony obviously prejudicial to appellant. See Miller v. State (Tex. Cr. App.) 36 S.W. (2d) 158. Tbe question asked by tbe district attorney and tbe statement made by him bad tbe effect of getting an improper matter before the jury, which was highly prejudicial and not, under the circumstances, reflected by the record, admissible. Harris v. State, 114 Tex. Cr. R. 509, 26 S.W.(2d) 216. Tbe opinion is expressed that, in view of the statement of tbe district attorney, the attempted withdrawal of tbe question asked by tbe district attorney did not cure tbe error. In Deckerd v. State, 88 Tex. Cr. R. 132, 225 S. W. 166, 167, in considering the effect of withdrawing testimony erroneously admitted, Presiding Judge Morrow used language as follows: “Tbe subject of withdrawing evidence erroneously admitted is one upon which there may be found many decisions, and from them we think tbe rule may be stated that tbe error in admitting improper evidence may be generally corrected by a prompt and definite withdrawal by court, and instruction to the jury to disregard it. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836, and cases therein cited; also Rose’s notes on Texas Report, vol. 5, p. 909. But this ruling is subject to the qualification that tbe withdrawal will not cure tbe error in the admission of testimony of a material character prejudicial to tbe accused on trial, and that, if doubt is entertained, it should be resolved In favor of tbe accused.”

In bis Annotated Penal Code of Texas, § 166, Mr. Branch states tbe rule as follows: “An error in admitting proof of other offenses is not cured by withdrawing tbe illegal testimony or limiting it in tbe charge.”

In discussing tbe effect of *the*withdrawal of testimony of a material character, prejudicial to tbe accused, Judge Lattimore, in McIntosh v. State, 85 Tex. Cr. R. 417, 213 S. W. 659, 661, said: “Some of these matters were not permitted to be answered by tbe court, and some of them tbe jury were instructed not to consider; but, as has often been strongly put, tbe jury are but human, and such an instruction is practically valueless, except possibly to preclude discussion of such matters. Impressions made on tbe mind can no more be erased by such instructions than tbe memory of a curse or a blessing can be torn out and thrust away by tbe effort of tbe will.”

Tbe issue of guilt was closely contested. If the testimony of appellant and bis witnesses was to be relieved, appellant acted in self-defense. Knowledge on tbe part of tbe jury that appellant bad been in tbe penitentiary might have turned tbe scales against ap*118pellant. Erom what we have said it follows that we are of the opinion that the bill of exception manifests reversible error.

For the error discussed, 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 Appeals and approved by the court