The opinion
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PRENDERGAST, Presiding Judge
(concurring).—It is the duty of the prosecuting attorneys in all legitimate and proper ways to show, if they can, that an adverse witness is testifying falsely or corruptly. If this can be done by cross-examining the witness, all well and good. It is also always proper and legitimate to show that a witness is interested, biased or prejudiced, and to prove anything which would legitimately show or tend to show this. If this can be done by cross-examination of the witness himself, 'so much the better. If they can not show this by cross-examining the witness himself, they can show it by other legitimate testimony. I think some of the questions along" these lines asked some of appellant’s witnesses, as shown by the bills, were proper and legitimate.
But some of the bills unquestionably show that appellant’s attorneys learned that certain questions would be asked certain witnesses seeking to impeach them, which were clearly illegal and improper, and known to be so by the prosecuting attorneys at the time ;■ and before they were asked, so informed the trial judge and besought him to instruct and require the State’s attorneys not to ask them. The court refused to do this, and the State’s attorneys asked them. In my opinion, as presented by the bills, this presents reversible error. (Vick v. State, 71 Texas Crim. Rep., 50 ; Bullington v. State, 78 Texas Crim. Rep., 187 , 180 S. W. Rep., 680 .) These cases are not like those of Sweeney v. State, 65 Texas Crim. Rep., 593 , and those cited therein, and a large number of other cases to the same effect. On this point I concur in the reversal.
I do not concur in all Judge Davidson says and holds in his opinion. The motion for new trial, or allegations therein, although sworn to as a pleading, does not prove itself. Besides the judgment of the court overruling it states that evidence was heard thereon, and after hearing it, the judge overruled it. What that evidence was is not disclosed. Hence, the overruling of the motion for new trial would not p>resent error.