majority">WHITE, Presiding Judge.

This appeal is from a judgment of conviction for murder in the second degree, the penalty being eight years in the penitentiary.

It appears from the record that the defendant had been previously tried and convicted of murder in the second degree, but that judgment had been set aside and a new trial awarded him.

As a preliminary question, we first propose to notice appellant’s contention, which, in effect, was and is, that where an accused has been once tried for murder in the first degree and found guilty of murder in the second degree, and said last judgment is set aside, and he is put upon trial a second time for murder in the second degree, if the evidence on such second trial makes out a case of murder- committed upon express malice, which is murder in the first degree, then and in that -event the accused can not be convicted of murder in the second degree, because the allegations’and proof do not correspond, but that he should be acquitted of any offense, and it would be the duty of the court to so charge the jury. In support of this proposition appellant relies upon the rule as announced by this court in Parker’s case, 22 Texas Court of Appeals, 106. In that case Parker had been convicted of manslaughter, which operated an acquittal of murder in the first and second degrees. On his subsequent trial, a new trial having been awarded, it was held error for the court to charge the jury upon the law applicable to murder in the first and second degrees, though it had instructed the jury that they could not convict of a higher degree of homicide than manslaughter; and further, that the court erroneously instructed the jury, if they believed from the evidence that the defendant was guilty of either degree of murder, they could find him guilty of manslaughter. The rule thus announced in Parker’s case is unquestionably correct.

A party charged alone of manslaughter could not be convicted upon evidence which would show murder and not manslaughter, for though manslaughter be embraced in the charge of murder, yet they are two entire, separate, and distinct offenses. Murder is predicable upon malice, either express or implied. Malice is not a constituent element *563of manslaughter, and manslaughter is predicable upon there being adequate cause occasioning the voluntary homicide. In such a case as Parker’s it was clearly radical error for the court to charge as was done. The rule is otherwise as between murder of the first and second ' degrees, where the party is on trial for murder in the second degree.

In McLaughlin’s case, 10 Texas Court of Appeals, 340, where defendant on his first trial had been convicted of murder in the second degree, he objected on his second trial to all evidence tending to prove the killing upon express malice, or which would tend to prove murder in the first degree. But it is held there that the objection was properly overruled. In the opinion the court said: “It is logically impossible to prove express malice without proving malice, and if the killing be upon, malice, the killing is murder.”

In Baker v. The State, 4 Texas Court of Appeals, 223, it is held that a defendant on trial for murder in the second degree is not entitled to an acquittal because the evidence against him would sustain a conviction for murder in the first degree. Smith v. The State, 22 Texas Ct. App., 316; Powell v. The State, 5 Texas Ct. App., 235; Blocker v. The State, 27 Texas Ct. App., 16. It is no defense to an indictment that the evidence shows that the defendant committed a higher offense than that charged. Commonwealth v. Andrews, 132 Mass., 263. The court did not err in refusing or declining to instruct the jury that they should acquit defendant if they found from the evidence that he had committed a murder of the first degree—that is, one upon express malice.

Defendant’s second bill of exceptions was reserved to the ruling of the court in permitting the witness Zilla Fuller to be recalled, after she had been discharged from the witness stand,, for the purpose of laying a predicate to impeach her by showing that she had testified to certain facts on a habeas corpus trial differently from what she testified as a witness on this trial. There was no error in this ruling. Harvey v. The State, 37 Texas, 365; Treadway v. The State, 1 Texas Ct. App., 668. In this connection we will examine plaintiff’s fourth bill of exceptions, which shows that the witness Wynne was called to prove the contradictory testimony of the said witness Zilla Fuller, and was allowed to testify, over objection, that said witness did not testily on the habeas corpus trial that the deceased Hugh Ingraham, at the time her father shot and killed the deceased, was about to shoot her father. The objection to the introduction of this testimony was that no proper predicate had been laid for its introduction, and because the witness Zilla Fuller, when a witness upon the stand, was asked the question if she did not testify on a habeas corpus trial that deceased Hugh Ingraham was about to shoot her father at the time her father shot and killed him, and she answered that she did not recollect it.

“It is no longer an open question that a witness who testifies that he has no recollection of having made the contradictory statements may *564be impeached by proof of such contradictory statements.” Levy v. The State, 28 Texas Ct. App., 203; Weir v. McGee, 25 Texas Sup., 21; Johnson v. Brown, 51 Texas, 65; Bressler v. The People (Ill. Sup.), 3 N. E. Rep., 521; Ray v. Bell, 24 Ill., 451; Wood v. Shaw, 48 Ill., 273; Williams v. The State, 24 Texas Ct. App., 637. The court did not err' in either particular mentioned in the two bills of exception.

Defendant’s third bill of exceptions was to the admission over his objection of the testimony of B. L. Tremble, to the effect that on the morning of the homicide, at his house, he had a conversation with the deceased; that deceased told him he had nothing against the defendant; that he wanted to be friendly with him; that he did not appear to be mad or angry with defendant; that he wanted no trouble with him; to which testimony defendant objected, because said defendant had not called for this conversation or any part of it, and because defendant had not been informed of said conversation prior to the homicide, which objection was overruled. We are of opinion that under the rule as now established in this State the evidence was inadmissible.

The rule is laid down in Brumley’s case, 21 Texas Court of Appeals, 222, to the effect that everything that could operate on the mind of the defendant could be proved, but you can not give in evidence the declarations or acts of the deceased which never came to the knowledge of the defendant, because they could have no influence one way or another upon his mind, and could neither aggravate nor reduce the crime. This same doctrine is reaffirmed in Johnson v. The State, 22 Texas Court of Appeals, 206, and Ball v. The State, 29 Texas Court of Appeals, 107.

Several bills of exceptions were reserved to the remarks made by the district attorney in his closing argument to the jury. By a bill of exceptions it is shown that the district attorney' said to the jury in his closing address: “The defendant in this case has brutally murdered Hugh Ingraham. He killed him because he was a poor man, wouldn’t work, and he married his (defendant’s) daughter. Yes, gentlemen, this was his motive. It is the only motive he had, and it is known all over this country.”

Again (bill of exceptions number 6), he said: “Hugh Ingraham violated no law, did no wrong, gentlemen, when he married defendant’s daughter. His marriage ,was a God-given right. He violated no law, for he had a written order for the license, signed by the darling of his heart.”

In bill of exceptions number 7 he is quoted as saying: “The defendant’s lawyers have called the dead man a devil. This is an old dodge, gentlemen. Cases like this have occurred in Van Zandt County before, and defendants’ lawyers in those cases have got their men clear by denouncing the men as devils. If you acquit this defendant, gentlemen, *565Van Zandt County will run in Mood. The foundations of the republic will he sapped, and the government which our fathers fought, Med, and died for will be wrecked.” Somewhat similar arguments to that used in the last above quotation were condemned by this court in Conn’s case, 11 Texas Court of Appeals, 391. See, also, Stone v. The State, 22 Texas Ct. App., 185; Crawford v. The State, 15 Texas Ct. App., 501. An attorney is not warranted in asserting a fact not in evidence, which is prejudical to the defendant. Clark v. The State, 23 Texas Ct. App., 261; Laubach v. The State, 12 Texas Ct. App., 583. It is unnecessary to cite other authorities, though many others might be found to the same tenor and effect in oúr decisions.

Again, by defendant’s eighth bill of exceptions it is shown that the district attorney in his closing argument used the following language: “This is not a case which calls for mercy at the hands of the jury. Mercy has already been extended to the defendant by the verdict of the former jury. Had not the State’s case been compromised by the verdict of the former jury, I would have a case of murder in the first degree. You can not convict of murder in the first degree as it is, but I do ask you to duplicate the verdict of the former jury. There is nothing less in this case than murder in the first degree, and I know it.”

Our Code of Criminal Procedure (article 783) expressly provides, that “the effect of a new trial is to place the cause in the same position it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.” . In House v. The State, 9 Texas Court of Appeals, 567, it was held that a former conviction that had been set aside affords no presumption of guilt, and prosecuting officers are prohibited by statute from alluding thereto in argument at a subsequent trial. See, also, Hatch v. The State, 8 Texas Ct. App., 416; Moore v. The State, 21 Texas Ct. App., 666; The State v. Balch, 31 Kans., 465; 2 Pac. Rep., 609; 9 Crim. Law Mag., 637-741. The argument of the district attorney in this particular constitutes reversible error, if there were no other error in the case.

A special bill of exceptions was reserved to the following charge given by the court to the jury, to-wit: “If at the time it reasonably appeared to the mind of the defendant by the acts of H. L. Ingraham, or by his words coupled with his acts, that it was the then present pur- * pose of said H. L. Ingraham to inflict upon defendant death or serious bodily injury, and such conduct on the part of deceased raised in the mind of defendant a reasonable expectation or fear of death,” etc. The defendant has the same right in acting upon reasonable appearances of danger to defend himself against appearances of serious bodily harm as he has against appearances that indicate his death. Hunni*566cutt v. The State, 18 Texas Ct. App., 500; 20 Texas Ct. App., 634; Penal Code, art. 574; Meuly v. The State, 26 Texas Ct. App., 274; Williams v. The State, 22 Texas Ct. App., 497; High v. The State, 26 Texas Ct. App., 545.

There are other errors complained of, but we do not deem it necessary to discuss them. For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

Davidson, J., being disqualified, did not sit in this case.

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