The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
The principal witness for the State was Tom Williams. His testimony and that of the appellant, who became a witness in his own behalf, was in conflict. The conviction rests in the main upon the testimony of Williams. During the trial, appellant and his counsel, for the first time, learned that Williams had been convicted of a felony. Appellant then requested that Williams be recalled for further cross-examination, and the witness admitted that he had been convicted of a felony and sent to the penitentiary for ,a period of five years. Appellant requested the court to postpone the case until a certified copy of the judgment of conviction from Montgomery County could be obtained. This the court refused.
Appellant also insists that Williams’ admission that he was a convict would disqualify him unless the pardon proclamation was proved by the best evidence. The court permitted Williams to testify that he had been pardoned. The bill of exceptions is somewhat meagre but sufficient, we think, to reveal the facts stated. We understand that when, without objection from the adverse party, oral testimony of conviction of a felony is received, the disqualification of the witness is thereby shown. See White v. State, 33 Texas Crim. Rep. 177 ; Bratton v. State, 34 Texas Crim. Rep. 477 ; Moore v. State, 39 Texas Crim. Rep. 266 ; Price v. State, 147 S. W. Rep. 243 ; Watts v. State, 148 S. W. Rep. 310 ; Matthews v. State, 163 S. W. Rep. 725 ; Branch’s Ann. Texas P. C., Sec. 18, p. 10.
When, by either the record of conviction of by secondary evidence, without objection, a witness is shown to be a convicted felon, his competency as a witness can be restored only by proof of his pardon. When parole proof of a pardon is offered, objection that it was not the best evidence should be sustained, for against such objection the pardon must be proved by the written instrument upon which reliance is had for the restoration. See Underhill’s Crim. Ev., 3rd. Ev., Sec. 334; Thompson v. State, 84 Texas Crim. Rep. 148 . In the present case, the appellant and his counsel, upon learning that Williams was a convicted felon, pursued the procedure suggested in Smiley’s case, 189 S. W. Rep. 482 , wherein it is said:
“If this was the first intimation that appellant received that Burks had served a term in the penitentiary, he should then have asked a postponement of the ease until he could send to Waco and get a
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copy of the sentence, if he desired to do so, setting up the fact that he had not prior to this time been aware of such fact.”
The request for postponement should have been granted.
Upon the original hearing, we declined to consider the matter of newly discovered evidence under the impression that the new evidence was not preserved by bills of exception filed during the term. It is the established rule that when upon the hearing of a motion for new trial, the court hears evidence other than that which is embraced in the exhibits attached to and made a part of the motion, that his action will not be reviewed in the absence of a bill of exceptions or statement of facts, filed during the term, preserving the evidence upon which the court acted in overruling the motion. See Black v. State, 41 Texas Crim. Rep. 185 ; Reese v. State, 94 Texas Crim. Rep. 221 ; Crowley v. State, 92 Texas Crim. Rep. 103 .
Upon further examination of the present record, we find that there is nothing which suggests that evidence was heard on the hearing of the motion for new trial. With the record in that condition, the presumption is indulged that in passing upon the motion the exhibits made a part of it were considered and this court, in testing the correctness of the action of the trial court, will not take the exhibits into account. This matter is discussed in some detail in Crouchett’s case, 271 S. W. Rep. 99 . The exhibits consist of certified copies of the records showing that the witness Tom Williams was convicted of a felony; that the penalty assessed was confinement in the penitentiary for a period of five years; that he was sentenced and incarcerated in the penitentiary and served his time; that the records in the office of the Secretary of State fail to show that any pardon was ever issued restoring his citizenship. Williams gave important testimony in favor of the State upon the main issue of guilt or innocence, which testimony was in conflict with that of the appellant, and manifestly entered into the verdict of guilty. From the newly discovered evidence it is apparent that under the statute of this State, (Art. 788, C. C. P), Williams was disqualified from giving the testimony. It is believed that in overruling the motion for new trial, the court fell into error. See Barber v. State, 87 Texas Crim. Rep. 585 , and eases therein cited.
For the reason stated, the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.