about a different result. It believed, it certainly strengthened the appellant's defense, in that it showed that Daniels, the injured party, took a pistol with him to the dance and, inmediately before meeting the appellant, got possession of it from the witness Sarah Daniels. This, while discrediting the evidence of Tom Daniels, was not wholly cumulative or impeaching. Beard v. State, 55 Tex. Cr. R. 157, 115 S. W. 592, 131 Am. St. Rep. 806; Dunn v. State, 85 Tex. Cr. R. 299, 212 S. W. 511.

We believe that, under the facts of the case, the evidence is newly discovered within the meaning of article 837, subd. 6, Code of Crim. Proc., and that the appellant has brought himself within the rule of diligence applicable to that article. Henson v. State, 74 Tex. Cr. R. 283, 168 S. W. 89 (on motion for rehearing); Gainer v. State, 89 Tex. Cr. R. 538, 232 S. W. 830; Cottrell v. State, 91 Tex. Cr. R. 131, 237 S. W. 928; Mireles v. State, 83 Tex. Cr. R. 608, 204 S. W. 861; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215. On the materiality of the testimony, see Russell v. State (Tex. Cr. App.) 242 S. W. 217.

facts relative to the assault, claiming that she was in the house at the time it occurred, which latter statement appears to be true. Being misled by the concealment from them of the facts which the witness did know, counsel for appellant did not call her as a witness. We may assume from the record that counsel representing the state fared no better in eliciting information from the witness than did counsel for appellant, or, if so, that the information obtained was not to the interest of the state, because it also refrained from placing her upon the witness stand. After the trial, through a conversation with her employer, and from information conveyed by him to appellant's counsel, they for the first time learned that this witness claimed that the injured party had taken his pistol from her possession when she was attempting to hide it in the automobile at a time only a few minutes before the difficulty occurred. She purposely concealed this knowledge from the attorneys representing appellant, and we are unable to conceive how they or appellant could have used any more diligence than the affidavits attached to the motion for new trial show they did use in an

ness knew. The truth of the facts asserted

On State's Motion For Rehearing. HAWKINS, J. [1] The state insists we were in error in holding that appellant had brought himself within the rule requiring a new trial for newly discovered evidence. Where the record shows a witness present at the trial whose evidence is claimed to be newly discovered; it is the exception rather than the rule that such contention will be sustained; but that such exception is well recognized will be found from an examination of the cases cited under the third paragraph of section 204, p. 130, Branch's Annotated Penal Code.

[2, 3] The state had proved by the injured party, Tom Daniels, that he was unarmed at the time appellant struck him with the axe. Appellant asserted to the contrary and claimed that Daniels had a pistol presented at him at the time the assault occurred. This was a pivotal issue in so far as appellant's right of self-defense was concerned. Sarah Daniels had been summoned as a witness by the state. The affidavits of appellant's counsel show they conversed with the witness who persistently denied that she knew any

his counsel was not controverted by the state. They urged in the court below, and now urge in this court, that if Sarah Daniels did testify upon another trial as indicated in her affidavit that the evidence is only cumulative, corroborative, and impeaching in its character and would not likely change the result. With this contention we have been unable to agree. One witness who was not close enough to the scene of the difficulty to see what was transpiring claims to have heard somebody say "Don't come on me with that pistol," still another witness testified that appellant remarked, immediately upon entering the house after he had struck the injured party with the axe, that, "If you don't believe he had a pistol, go look in the yard." The state showed by an eyewitness other than the injured party that the latter was unarmed at the time of the assault. If appellant is able to show upon another trial that Tom Daniels was seeking his pistol and obtained possession of it just a few minutes before the difficulty occurred, the jury is entitled to know that fact to aid them in determining whether or not in truth Tom Daniels was armed with a pistol as claimed by appellant at the time of the difficulty.

The motion for rehearing is overruled.

STERLING v. STATE. (No. 6995.)

(Court of Criminal Appeals of Texas. Feb. 28, 1923.)

I. Criminal law 507 (4)-Officer, arranging with porter of hotel to send prostitute to his room, held accomplice.

In a prosecution for procuring, an officer who went to a hotel and arranged with a porter to send a woman to his room for illegal sexual purposes, held an accomplice. 2. Criminal law

780(1)-Proper to charge that conviction cannot be had on testimony of accomplice alone.

When the state relies for conviction upon the testimony of an accomplice, it is always proper to tell the jury that a conviction cannot be had on such testimony, unless there be other evidence in the case than that of the accomplice, which of itself tends to connect

the accused with the commission of the offense.

3. Criminal law 511(1)-Method of determining whether testimony, exclusive of that of accomplice, sufficient to corroborate him stated.

To determine whether the testimony exclusive of an accomplice be sufficient to corroborate him, the testimony of the accomplice should be omitted from consideration, and the remaining testimony sifted and considered to determine if it points to the guilt of accused. 4. Criminal law 511(1)-Evidence held insufficient to corroborate testimony of accomplice in prosecution for procuring.

In a prosecution for procuring, evidence of an officer that he went to a hotel, where accused was employed as porter, and that accused sent to his room at the officer's request a woman for illegal sexual purposes, held insufficiently corroborated.

Appeal from Tarrant County Court, at Law; P. W. Seward, Judge.

Jesse Sterling was convicted of procuring, and he appeals. Reversed and remanded.

Baskin, Dodge & Beene, of Fort Worth, for appellant.

and would get him one. This witness further testified that later a woman came to his was, and that she told him, but that she was room, and that he asked her what her price in a hurry and could not stay with him at that time, but would come back later, and she left, and he left.

[1-4] The trial court correctly instructed the jury that said officer was an accomplice. The question is raised as to the sufficiency of the testimony. Where the state relies for a conviction upon the testimony of an accomplice, it is always proper to tell the jury, as was done in this case, that a conviction cannot be had on such testimony unless there be other evidence in the case than that of said accomplice, which of itself tends to connect the accused with the commission of the offense. It is a well-known method of reasoning in cases wherein the court is called upon to determine if the testimony exclusive of that of the accomplice be sufficient to corroborate him, and we omit from our consideration the testimony of said accomplice, and consider and sift the remaining testimony to see if it point to the guilt of the accused. We have done so in the instant case. Appellant was unquestionably employed at said hotel as a porter. The woman whom it is charged that he allured and procured for illegal purposes was shown by the uncontradicted testimony of a number of witnesses to be a woman of good reputation for virtue and chastity and to be a working woman. She testified in behalf of appellant, and swore that he came to her room and told her that there was a gentleman in room 14 who said he knew her and wanted to see her. She said she went to the door of room 14, and, observing the officer in there, and that he was a strange man, she asked him what it was that he wanted, and according to her testimony he made some proposals to her which she rejected, and whereupon she went back to her room and left the hotel. Appellant testified that the officer came to the hotel and registered, and that he was accompanying said officer to the room assigned to

LATTIMORE, J. Appellant was convicted in the county court at law of Tarrant county of procuring, and his punishment fixed at a fine of $50 and 30 days in the county jail.

The principal state witness was an officer in the city of Fort Worth, who went down to the hotel at which appellant was employed as porter, went in, and accosted the appellant and told him that he wanted a room and was told to register, he asked what it would cost, and was told a dollar, which he paid, and, according to his own testimony, he then asked appellant, "Have you got any women here?" and appellant told him that he had,

We have gone through this record carefully, and find ourselves unable to assent to the proposition that there is testimony, aside from that of the officer mentioned, which tends to connect the accused with the offense of procuring or alluring a female to come to a room in the Endicott Hotel in Fort Worth for illegal sexual purposes. The judgment is reversed, and the cause is remanded.

venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the de

nial of the motion."

A number of authorities are cited in support of the doctrine announced.

Because of the error in the overruling of the application for change of venue, the judgment of the trial court will be reversed, and the cause remanded.

ROSS v. STATE. (No. 7399.)

(Court of Criminal Appeals of Texas. Feb. 28, 1923.)

Criminal law 137-Overruling uncontroverted application for change of venue held

error.

Where application for change of venue was properly verified, no controversy of the facts filed, no issue joined by the state, and no evidence heard, overruling it was error.

Appeal from District Court, Montague County; C. R. Pearman, Judge.

Frank Ross was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

Benson & Benson, of Bowie, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J. Appellant was convicted in the district court of Montague county of selling intoxicating liquor, and his punishment fixed at one year in the penitentiary. In our view of the proper disposition of this case it will hardly be necessary to state the facts or any other matters than that an application for change of venue was prepared and sworn to by appellant, same being in conformity with the statute and setting forth in customary language that there existed against appellant such prejudice in Montague county as that he could not obtain a fair and impartial trial. Said motion was signed and sworn to by appellant, and was supported by the affidavits of two citizens of said county. There was no controversy of the facts filed, and no issue joined by the state upon the application. As far as the bill of exceptions informs this court, no evidence was heard, but the trial court merely made an order overruling the application for change of venue. In Cox v. State, 90 Tex. Cr. R. 106, 234 S. W. 72, occurs the following statement:

"The presentation of an application for change of venue, properly verified, makes it

SMITH V. STATE. (No. 7183.) (Court of Criminal Appeals of Texas. Feb. 28, 1923.)

1. Criminal law 507 (4)—Son of sheriff, buying liquor of accused held an accomplice.

In a prosecution for selling intoxicating liquor, a son of the sheriff, who with another went to the home of T. S., a brother of accused, and there bought from some one a quantity of liqúor, and testified against defendant, held accomplices; the sale having taken place before amendment to the Dean Law, providing that purchasers are not accomplices.

2. Witnesses 383-Cannot be impeached by proof of contradiction upon immaterial matter.

A witness cannot be impeached by proof of contradiction upon an immaterial matter. 3. Criminal law 407 (2)-Accused not bound by statements of third party, unless made in his presence and hearing.

It must be made to appear reasonably certain that the statements of a third party, by which the accused is sought to be bound, were made in the presence and hearing of accused, and under circumstances reasonably calling for a denial or indicating his assent.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Earnest Smith was convicted of selling intoxicating liquor, and he appeals. Reversed.

Tom Whipple, of Waxahachie, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

bought from some one a quantity of liquor, for which $2.50 was paid. Both Forbes and Hickman testified as witnesses for the state, and were the only witnesses who testified to the sale of the liquor. Bryan Forbes was unquestionably an accomplice to the offense charged against appellant, said sale having taken place before the amendment to the Dean Law, exempting purchasers in crimes of this sort from being accomplices, became effective on November 15, 1921. The trial court did not instruct the jury that Forbes was an accomplice. That this was error is manifest. Plachy v. State, 91 Tex. Cr. R.

405, 239 S. W. 979.

In the testimony of young Forbes we find the following, referring to the occasion of himself, young Hickman and Henry Quaite going down to the home of Tom Smith to purchase the liquor in question:

"When we called for Earnest to come out I don't know whether I or some of the other boys told him what we wanted. Henry Quaite was kind of spokesman for the bunch; but one of us three told Earnest what we wanted, that we wanted some whisky, and he said all right. We wanted a pint, and he just pulled it out of his pocket right then, and insisted on us taking a quart. We were standing right there near

the house."

Adverting to the testimony of young Hickman, the only other eyewitness to the transaction, we observe that he states that he went with Bryan Forbes to Tom Smith's on the night in question. We quote from his testimony:

"Earnest Smith come out to the car where we were, and the transaction took place right there at the car. Forbes and I finally got out of the car; we were talking about wanting to get some whisky. The party had the whisky in his pocket. We told him we wanted to buy some whisky-whoever did the talking told him that. I forget whether we stated how much we wanted. I do not believe he told us how much

he had."

It is true that elsewhere in his testimony this witness referred to the fact that Forbes received the whisky and paid the money to the defendant. We are not at all sure that this witness Hickman is not also an accomplice in law. If in fact he and Forbes were contributing to the purchase, or if they were acting together in the purchase of the liquor in question, the transaction having taken place before November 15, 1921, Hickman might also be deemed an accomplice. We are of opinion at least that the question is left in much doubt in our minds, and, inasmuch as the state relies almost alone up on the testimony of said two witnesses, and in view of certain other proceedings had upon this trial, we find ourselves unwilling to assent to the soundness of this judgment. The young men visited the home of Tom Smith, and purchased the liquor in question

about 11 o'clock at night. The defense of Earnest Smith was that of alibi, and he put on a number of witnesses, who testified that he was at his home, some two miles distant from the home of Tom Smith, on the night in question. It further appears from the testimony that after the three young men went back to Waxahachie they gave information to the sheriff of the success of their effort to buy whisky, and that official, accompanied by three deputies, went to the home of Tom Smith about 4 o'clock a. m. on that same night. They called for Tom, and when he came out into the yard they arrested him. He was a witness on behalf of appellant in this case. While on the stand he was asked with reference to a statement made by him when he was in process of arrest by the officers on that night. The state sought to show that Tom called out "Earnest, Earnest, shoot! shoot! shoot!" and also that he further said, "Earnest, don't shoot! They are holding me between you and them." This testimony was objected to, as being out of the presence and hearing of appellant, and a diligent search of the record fails to disclose anything in the testimony tending to show the presence of appellant at said house at 4 o'clock in the morning, save the statements just referred to. The trial court in his charge to the jury instructed them that they could not consider these statements for any purpose except as affecting the credibility of Tom Smith as a

witness.

[2, 3] It is a well-settled rule that a witness cannot be impeached by proof of contradiction upon an immaterial matter. If appellant was in the house of his brother, and heard the latter make the statements above referred to, it would be extremely doubtful whether such statements could he held admissible upon any possible rule. That the statements were prejudicial seems beyond question. Tom Smith was struggling with the officers and resisting arrest and calling to his brother, if the testimony of the witnesses be correct, to "shoot! shoot! shoot!" The other construction was that he was telling his brother not to shoot, as the officers were holding him between the brother and the officers. Just how appellant could be bound by these statements made by Tom Smith, even if he was in the house at the time they were made, is not clear. The entire lack of any testimony for the state showing appellant's presence in Tom Smith's house at the time of said arrest and statements, seems to indicate that the statements could not be introduced upon any theory as having been made in the presence and hearing of the appellant and by which he was bound. The rule in any case is that it must be made to appear reasonably certain that the statement of a third party by which the accused is sought to be bound was made in