The opinion
on rehearing.
'May 21, 1913.
DAVIDSON, Presiding Judge.
Appellant files a motion for rehearing asking that the court pass upon his eighth bill of exceptions in view of another trial. The bill recites that while Mr. Weisiger was testifying for the State he stated that Kyle, Sylvan and Saens accompanied him to the scene of the homicide in an automobile the day after the homicide and there met and talked with State’s witness Feroba through Saens as interpreter. State’s counsel then asked this question: “What was interpreted to you by Henry Saens as to Feroba’s statement of how this meeting occurred ?” Several objections were urged to the question, which were overruled, and witness was permitted to testify that Saens said that Feroba said that when they met the defendant the latter remarked, “How I have got you where I want you,” or “Here is where I want you.” Various objections were again urged to the introduction of this testimony. In the manner presented by this bill this testimony should not have been permitted to go to the jury. This was not impeaching the testimony of Saens but it was Weisiger’s recollection of what Saens had said to him interpreting what the Mexican witness Feroba had said. The court admitted this, it seems, upon the theory that Weisiger was contradicting Kyle as to what occurred. Kyle testified that he and Weisiger understood some of the Mexican language, and that he, Kyle, understood Feroba to say to Saens that the defendant was invited from his horse by the deceased. To meet this, under the qualification of the bill, the court permitted Weisiger to testify what Saens told him, Weisiger. Weisiger was not testifying what he understood Feroba to say but only as to what Saens told him that Feroba said. Kyle had testified what he understood Feroba to say and not what Saens had told him. As-this matter came up, it was - not admissible in the connection in which it was offered. If the matter is presented in the same way upon another trial the testimony should be 'rejected. The impeachment of Saens might be a different proposition. We, therefore, • hold that as the matter is presented the statement of Saens would not be admissible unless it became a matter of impeachment of Saens. The statement of Saens would not be original testimony.
At the request of appellant we review this question. We hold that as the bill is presented the testimony of Weisiger as to what Saens stated
*493
was not original testimony; it might or might not be impeaching, owing to the circumstances. Inasmuch as the case is reversed on other questions, we call attention to this so it may not occur.in this manner again.