The facts are stated in the opinion. Or by cross-examination of defendant himself, testifying in his Own behalf. Carothers v. State, 75 Ark. 574, 88 S. W. 585 (attempt of defendant to silence testimony against himself by effort to get material witness for state out of county). that, in criminal cases, either party has a right to show that any witness has attempted to influence any other witness for or against the accused, since proof of such an attempt would go to show bias, hostility, or interest in the former witness, and might affect his credibility. And it is not neces- Or by cross-examination of witness for sary, under this rule, to show that defend- defendant. People v. Mack, 14 Cal. App. 12, ant was present during such attempt on the 110 Pac. 967 (attempt of defendant's witpart of one of his witnesses, or knew any-ness to induce prosecuting witness to drop thing about it, since evidence of such at- case, and to absent herself from the county); tempt is not admitted for the purpose of Seahorn v. Com. 25 Ky. L. Rep. 2203, 86 impeaching the defendant or showing his S. W. 223 (defendant's witness effecting the guilt, but only for the purpose of weakening absence of state's witnesses who testified in the effect of the testimony of the witness. behalf of the state before the examining The general rule stated above applies to all court); State v. Hack, 118 Mo. 92, 23 S. W. of the four possible situations which may 1089 (defendant's witness offering prosearise, viz., right of the state to show that a cuting witness money to leave the city, and witness for the defendant has attempted to not to appear against defendant); Webb v. influence a state's witness; right of the State, Tex. Crim. Rep., 58 S. W. 82 state to show that a witness for the de- (attempt of defendant's witness to tamper fendant has attempted to influence another with and suborn state's witness); Pace v. witness for defendant; right of defendant to State, Tex. Crim. Rep., 79 S. W. 531 show that a witness for the state has at- (attempt of defendant's witness to get the tempted to influence a witness for the prosecuting witness to drop the case): defendant; and right of defendant to Owens v. State, Tex. Crim. Rep. show that a witness for the state has at- S. W. 31 (defendant's witness simply asking tempted to influence another witness for the prosecuting witness what he swore to in the state. And the rule is the same when either grand jury room). witness in question is the defendant himself testifying in his own behalf. The rule is settled that in a criminal prosecution the state may show, for the purpose of impeaching a witness for defendant, that such witness has attempted to influence a witness for the state in favor of the defendant. This may be shown by the testimony of the state's witness. State v. Cook, 13 Idaho, 45. 88 Pac. 240 (attempt of defendant's witness to persuade him to leave the state, and not to testify against defendant); BURNAMAN V. STATE (defendant's witness telling prosecuting witness that they must get together and understand the matter alike, so that they could tell the same story on the trial - 96 And if the witness for defendant denies on cross-examination that he made the alleged attempt, he may be contradicted by the testimony of the witness for the state whom he is alleged to have attempted to influence. Lewis v. State, 35 Ala. 380 (defendant's witness telling a witness for the prosecution that he must swear to a certain statement, and if he did not, said defendant's witness would whip him); People v. Mack, supra: Sims v. State, 38 Tex. Crim. Rep. 637, 44 S. W. 522 (defendant's witness approaching state's witness and telling him that defendant was a particular friend of the former, and asking him to be as light on defendant as possible,-that he would never lose anything by it); Webb v. State, supra. But in Gann v. State, 57 S. W. 668, it was held that a witness for the defendant should not be permitted to testify that he requested another witness Tex. Crim. Rep. Messrs. Blount & Strong and C. E. Lane, Assistant Attorney General, for the State. made certain res gesta statements to them. The state introduced Bill Lee when first opening and presenting its case. He at that time fully testified to said res gesta state Prendergast, J., delivered the opinion ments. After introducing other testimony,' of the court: the state rested. Appellant thereupon, Appellant was indicted for the murder of among other witnesses, introduced his his brother-in-law, Mike Manning. On a brother, Phillip Burnaman, who was a most trial he was convicted of manslaughter, and his penalty fixed at five years in the penitentiary. material witness for appellant, and gave pertinent and strong testimony in his favor, disputing, in part at least, the testiOne of the state's most material witnesses mony of said Bill Lee as to said res gesta was Bill Lee, who gave pertinent testimony statement, and adding thereto material and against appellant. He and appellant's strong testimony tending to establish apbrother, Phillip Burnaman, were together pellant's most material defense, which was near Phillip's house at the time appellant self-defense. The state, in crossing appelkilled deceased. Immediately after the kill- lant's brother, Phillip, did not ask him if ing appellant went from the scene to said he had attempted to get said Lee to testify Lee and appellant's brother, Phillip, and as he (Phillip) did as to said additional not to testify against defendant as to cer- | latter's favor. This may be shown by crosstain facts within his knowledge, upon the examining defendant himself while testifyground that the request was made without ing in his own behalf. State v. Deal, 52 Or. the authority of defendant and in his ab- 568, 98 Pac. 165 (defendant attempting to sence, and the judgment was reversed be- persuade another witness to testify to facts cause of the wrongful admission of such favorable to defendant as of witness's own testimony. The court enters into no argu- knowledge, when really they were not ment in support of this position, but cites such); Grabowski v. State, 126 Wis. 447, certain cases, which on examination are 105 N. W. 805 (defendant building up his found not to sustain the decision. The own case in taking two men as witnesses to cases cited are for the most part those a certain place and then bringing them to where the attempt at influencing a witness court to testify). sought to be proved was made by one not a witness in the case, and where the proof was offered to affect the defendant's character directly, or to show his guilt, and not for the purpose of affecting the credibility of the witness, those cases thus resting upon a different principle. Moreover, the Gann Case has since been disregarded by the Texas courts. See Webb and Pace Cases, supra. The case coming nearest to the point here involved, and cited in the Gann Case, is Marshall v. State, 5 Tex. App. 273, where it was held that, under a statute providing that the confession of a defendant shall not be used in evidence against him, if at the time it was made the defendant was in the custody of an officer, or if he was not first warned that it might be used against him, evidence of a state's witness that defendant told him while in the presence and custody of the deputy sheriff, to go and see another witness and tell him to leave the country, and that if he would leave, defendant would furnish him all the money he wanted, is not admissible as a confession of guilt which could be obviated only by getting the principal state's witness out of the country. Right of state to show that defendant's witness has attempted to influence another witness for defendant. It is also the settled rule that the state in a criminal prosecution may, for the purpose of impeaching a witness for defendant, show that such witness has attempted to influence another witness for defendant in the Or by cross-examining defendant's witness. People v. Wong Chuey, 117 Cal. 624, 49 Pac. 833 (as to attempt of defendant's witness to bribe another witness to give false testimony in interest of defendant): State v. Hayward, 62 Minn. 474, 65 N. W. 63 (as to conversations between defendant's witnesses concerning the crime, for the purpose of ascertaining how much concert of action there was between them, and how much the story of either or both had been developed, changed, or modified by such conversations); Lowry v. State, 53 Tex. Crim. Rep. 562, 110 S. W. 911 (as to defendant's witness telling another that if she would help to destroy certain evidence and would swear for defendant, defendant would beat); Irvin v. State, Tex. Crim. Rep., 148 S. W. 589 (as to witness for defendant seeing other witnesses about the defense, and approaching them in an improper way); State v. Carr, 65 W. Va. 81, 63 S. E. 766 (as to defendant's witness conversing with another such witness about the case before trial, trying to influence her in favor of the defendant). And if, on cross-examination, such witness for defendant denies the attempt, he may be contradicted by the testimony of the other witness. People v. Wong Chuey, 302, 39 S. W. 692 (defendant's witness insupra: Barry v. State, 37 Tex. Crim. Rep. terested in procuring another to testify for defendant or in fabricating testimony); Lowry v. State, supra. Thus, evidence is admissible to the effect that a witness has gone to another witness and told her to stand up for defendant, and material res gesta statement, or what ap- tice to both parties, and had gone to his pellant had said to them and exhibited to home, some miles distant, and his further them immediately after said killing. In attendance was not had, and he was not rebuttal, after appellant had closed his again placed on the stand. testimony, the state reintroduced said Lee, who testified, denying pointedly the testimony of appellant's brother, Phillip, as to said additional claimed res gesta statement. (The court, in approving appellant's bill raising this question, allowed it in connection with the full statement of the evidence, as shown by the statement of facts.) The witness Phillip Burnaman, after having testified for appellant, was excused by the court from further attendance, with no We here quote in full what then occurred and what said witness Lee testified: State: Now, the other question we want to ask this witness in regard to the statement of that absent witness, we can't do it unless we have him here to ask the question. Court: aside. Well, if that is all, stand him State: We will ask the question. not to tell anything against him. Pearson | from the town, in order to keep him from v. State, 56 Tex. Crim. Rep. 607, 120 S. W. 1004. And it is proper for the state to prove that certain witnesses met a brother of defendant in defendant's presence, and with his knowledge and at his instigation, one of the witnesses received a horse and saddle with which to leave the country, and avoid testifying, especially where it appears that defendant had already inquired if such witness could be bribed, and had made arrangements with regard to the payment of his debt. Clark v. State, Tex. Crim. Rep. -, 43 S. W. 522. And in Parker v. State, 11 Ga. App. 251, 75 S. E. 437, it was held to be proper to ask a witness for defendant whether he did not attempt to bribe or suborn another witness in the case, provided counsel expects to prove that to be the fact; but the court adds that, if the question is asked merely for the purpose of discrediting the witness, and without any bona fide intention of proving the facts referred to, counsel simply hoping to leave a trail of indefinable prejudice in the minds of the jury, his conduct would be most reprehensible. But in Burks v. State, 72 Ark. 461, 82 S. W. 490, it was held erroneous to permit the prosecuting attorney to ask the father of the defendant what he gave another witness to testify in the case for the defendant; such a question does not ask whether the one witness has bribed another to testify, which the court says would have been permissible, but assumes that where there was bribery and simply asks how much had been paid for the testimony. It therefore appears to have been asked simply to prejudice the defendant and other witnesses in the eyes of the jury, and was highly improper. Right of defendant to show that a state's witness has attempted to influence a witness for the defense. It is likewise the right of the defendant, for the purpose of impeaching a state's witness, to show that such witness has attempted to influence a witness for the defense. This may be shown by cross-examination of such state's witness. Scott v. State, 113 Ala. 64, 21 So. 425 (showing that the witness for the prosecution "ran" another person away testifying for defendant); State v. Koller, 129 Iowa, 111, 105 N. W. 391 (showing an attempt by the prosecuting witness to dissuade some of defendant's witnesses from attending and testifying in his behalf); Richardson v. State, 90 Md. 109, 44 Atl. 999, 15 Am. Crim. Rep. 222 (showing that the state's witness offered to pay a certain sum to keep a witness for the defendant away until after the trial, or that he offered a bribe to another witness, to induce him to testify, after that other had informed him that he knew nothing but hearsay about the case); Sapp v. State, Tex. Crim. Rep., 77 S. W. 456 (showing that the state's witness induced another party to go off the bond of one of defendant's witnesses, the bond being for another offense, because the latter witness was one for defendant). And if such state's witness denies the allegation, he may be contradicted by the testimony of the other. Richardson v. State and Sapp v. State, supra. Right of defendant to show that a state's witness has attempted to influence another witness for the state. And finally, the defendant, for the purpose of impeachment, has a right to show that a state's witness has attempted to influence another witness for the state. This may be shown by cross-examining the one alleged to have made the attempt. State v. Rutledge, 135 Iowa, 581, 113 N. W. 461 (one prosecuting witness endeavoring to intimidate others); State v. Hakon, 21 N. D. 133, 129 N. W. 234 (state's witness offering to bribe another to testify falsely); Green v. State, 54 Tex. Crim. Rep. 3, 111 S. W. 933 (cross-examining prosecuting witness as to his admission to another state's witness of his own bad position in the case, and as to his effort to coach the other as to the evidence he should give). And if such state's witness denies the allegation, defendant should be given opportunity to contradict him by the testimony of the other. Green v. State, supra. And, generally, when a witness has denied on cross-examination that he was active in getting testimony, he may be contradicted by other witnesses. Hamilton v. People, 29 Mich. 173, 1 Am. Crim. Rep. 618. Defendant: We object if there is no predicate laid. State: It is a question I don't think a predicate has to be laid for; the court can pass on that proposition. Q. I will ask you whether or not, since the morning of the homicide there, that means the killing, after you met Sam, since that time the brother of Sam, that is, Phillip, has approached you and told you that you and him must get together and understand this matter alike, so that you could tell it alike when you came to court? A. Yes, sir. Defendant: We object to that; that is Or the attempt of one state's witness to influence another may be shown by crossexamining the one upon whom the attempt is alleged to have been made. Salm v. State, 89 Ala. 56, 8 So. 66 (showing that another prosecuting witness induced the one testifying to swear out a warrant against the defendant charging him with a criminal offense); Sue v. State, 52 Tex. Crim. Rep. 122, 105 S. W. 804 (showing that another state's witness tried to get the one testifying to testify falsely). And in the proceedings against the Five Popish Lords for high treason, and the subsequent trial of Lord Viscount Stafford, in 1680, reported in 7 Howell's State Trials, beginning at p. 1217, it appears at pp. 1400 et seq. that witnesses for the prosecution were allowed to testify as to attempts by another state's witness to bribe them to swear falsely against the defendants. Also, the defendant may show that witnesses have formed a conspiracy against him, as evidencing the spirit which animates such witnesses, and aiding the jury in placing a proper estimate upon the value and importance of their testimony. State v. Breeden, 58 Mo. 507. And a letter written by a detective who is also a witness for the state, to another witness for the state, telling her that it is time for her to get busy and to keep him posted, and asking if she knows anything of value, written after the alleged crime and before the trial, is relevant and admissible in evidence as tending to illustrate the interest which the witnesses have in the case. Goforth v. State, Ala., 63 So. 8. As said in Salm v. State, supra, proof that one witness attempts to influence another against the accused shows unfriendliness towards the latter, and is competent evidence, not necessarily as discrediting such witness, but as a circumstance to be weighed by the jury in determining whether bribery or ill feeling does not to some extent color the testimony thus given. But it has been held that where two state's witnesses give substantially the same account of the affray when arrested about the same time in widely separated places, it is not reversible error for the court upon the trial to refuse to permit defendant to ask one of these witnesses if he did not have a private conversation with the other certainly not impeaching testimony to begin with, and if there is any, all right; go ahead; we don't care. A. Phillip has talked to me twice about that. In the conversation with Phillip, he undertook to call my attention to the fact, and asked me if I didn't see cut places there; that was a day or so, a couple of days, after the killing took place; I went back up there to work, and he says, “Didn't Sam show us that cut place on his jumper?" and I says, "No, he didn't show it to me," and he says, "I saw it somewhere," and says, "It seems to me like it was when he come up here," and he says, "You want soon after the crime was committed; such a question was said not to be proper crossexamination, and not necessary to lay the foundation for impeachment. But the court adds that if such conversation occurred, it would be proper for the defendant to show it by his own witnesses. State v. Munchrath, 78 Iowa, 268, 43 N. W. 211. And the defendant should not be allowed to prove that one state's witness hired out another state's witness to a third state's witness, where there is nothing to show that such hiring would tend to prejudice or bribe any one of them against the defendant, neither the state nor the defendant having had anything to do with the hiring. Green v. State, 168 Ala. 90, 53 So. 286. And examination of one witness as to what he has told another witness he is going to testify to in the case does not tend to show that the testimony of the first was suggested to him by the second (but the converse), and such examination should not be allowed with that alleged object. Sylvester v. State, 46 Fla. 166, 35 So. 142. Nor is it reversible error to exclude evidence that a witness for the prosecution was implicated in an attempt to procure false testimony from other witnesses, when such evidence is not offered to show his bias or to affect his credibility, but only on the broad ground that evidence of any such attempt is admissible as such, especially when the witness thus attacked has not testified as to any facts in dispute. Com. v. Min Sing, 202 Mass. 121, 88 N. E. 918. And in an early English case, it was held that when a witness for the prosecution has been examined in chief, and has not been asked on cross-examination as to any declarations made by him or acts done by him to procure persons corruptly to give evidence in support of the prosecution, it is not competent for the defendant to prove by his witnesses such declarations or acts, without first calling back such witness examined in chief to be examined or cross-examined as to the declarations or acts alleged; and this rule was held to apply even though the discovery of his attempt to corrupt witnesses occurred after his examination in chief and cross-examination. Queen's Case, 2 Brod. & B. 311, 22 Revised Rep. 662, 11 Eng. Rul. Cas. 183. H. C. Sh. to understand this has got to go to court," | missible as original evidence, for the purand I says, "Well, I know it. I have been summoned to go to court." Q. And what was it he said to you when he was talking, that you answered while ago that you must get together on the matter? Defendant: We object to that. State: I asked him what was it the brother, Phillip, said about getting together. Defendant: Go ahead and relate it again. A. I started to preaching one evening, and Phillip saw me coming, and come and met me, and he stopped me and says, "You know this little thing is going to be in before the grand jury now right away, and we want to get together-" Defendant: We object because this is the statement between two witnesses in the absence of the defendant. pose of showing the bias and interest of Phillip in his brother's favor; that it shows or tends to show the motive of Phillip in testifying as he did in appellant's favor. It has many times been decided by this court, and we think it is elementary, that the "motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility." Pope v. State, Tex. Crim. Rep., 143 S. W. 613, and cases therein cited and principles therein held. The rule is that the hostility of a witness towards a party against whom he is called may be proved by any competent evidence. It may be shown by cross-exam Court: It only goes to the credibility of ination of the witness, or other witnesses the witness. it. may be called who can swear to facts show Defendant: There is no predicate laid for ing it. In People v. Brooks, 131 N. Y. 321, 30 N. E. 189, the rule is thus stated: Court: I don't think it is a character of "The hostility of a witness towards a matter that requires a predicate. party against whom he is called may be Defendant: We except to the ruling of proved by any competent evidence. It may the court. be shown by cross-examination of the wit swear to facts showing it. There can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not till then, witnesses may be called to contradict him, because it is not a case where the party against whom the witness is called is seeking to discredit him by contradicting him. He is simply seeking to discredit him by showing his hostility and malice, and as that may be proved by any competent evidence, we see no reason for holding that he must first be examined as to his hostility." This rule was again reasserted in Brink v. Stratton, 176 N. Y. 150, 63 L.R.A. 182, 68 N. E. 148. "And he says we want to get togetherness, or witnesses may be called who can and tell this matter so we can tell it alike," and I told him that I had done told it once just like I saw it, that was the way I was trying to tell it, and I rode off and left him standing there in the road. After Sam came up there where me and Phillip were after the shooting, and on that same morning before the body was moved, I saw Sam Burnaman again; he was leading his horse as we were moving Mike; we met him coming leading his horse out of the pasture; we were in about 7 or 8 steps of him; I don't know whether his jumper was but toned at that time or not; I didn't notice anything wrong with his clothes or torn places anyway, but I didn't notice him much because I was helping carry Mike. I never at either of those times noticed that his clothing were torn and his breast open, or anything of that kind. Mr. Underhill, in his excellent work on Criminal Evidence, § 248, says: "The bias of the witness and his interest in the event of the prosecution are not collateral, and By his second bill appellant claims that may always be proved, to enable the jury the court committed reversible error in to estimate his credibility. They may be failing and omitting to limit the effect of proved by his own testimony upon crossexamination, or by independent evidence. the said testimony of Bill Lee to impeachThe bias of the witness may be ment purposes alone of his brother, Phillip shown either by independent testimony, or His contention is that it is error for the by questions put to him upon his examcourt to have permitted, over his objec-ination." This court has expressly held tions, the state to prove that his brother, this in several decisions. Cockrell v. State, Phillip, undertook to persuade said Lee to 60 Tex. Crim. Rep. 128, 131 S. W. 221; change or manufacture his testimony, un- Porch v. State, 51 Tex. Crim. Rep. 11, 99 less it be shown that he was connected with S. W. 1122; Bonnard v. State, 25 Tex. App. or authorized the same. The state con- 195, 8 Am. St. Rep. 431, 7 S. W. 862, 7 tends that this testimony by Lee was ad-'Am. Crim. Rep. 462. So has our court of |