¶1 ON MOTION FOR REHEARING.
¶2 The state has quite properly moved a rehearing. The motion is supported by a very helpful brief prepared by the able district attorney who conducted the prosecution. It thoroughly reviews the evidence and brings many decisions to our attention. The contention is that the hostility of the witness was so made to appear that the rejection of the offered evidence was not prejudicial. It cannot be sustained.
¶3 We have held in this case that an offer to prove by a state’s witness, on cross-examination, that he entertained a deadly animosity for the accused may not be denied because the witness has admitted an unfriendly feeling. No more. We have not held that the cross-examiner may cumulate instances of the same degree of hostility, nor that he may inquire into the causes for it, or as to the justification or lack of justification for it. All agree that the bias is a material fact. Manifestly, the degree of it is just as material. In respect to its effect upon credibility there may be as much difference between deadfy hatred and unfriendly feeling as between the latter and friendly feeling.
¶4 We cannot agree that the witness did not testify to “any very material facts.” The issue was self-defense. Appellant claimed that the deceased attacked him with a knife which was found at the side of the deceased. The witness’ testimony tended to show that the knife did not belong to the deceased, thus supporting the theory that the whole defense was fabricated. See statement of facts. State v. Burkett, 30 N. M. 382, 234 P. 681.
¶5 It is true that counsel were allowed to question the witness as to other facts which, if answered in the affirmative, would have shown the degree of bias sought by the rejected question to be shown. But to those questions negative answers were given. It is true, also, that on some of these negative answers the witness was directly impeached, and that the record contains considerable evidence to sustain the contention of appellant as to the witness’ deadly animosity. But the jury may not have believed appellant’s witnesses. Such proof cannot cure the error in refusing appellant the right to obtain an admission from the witness if he could. An admission would have been conclusive. Nor can we conjecture that, in line with the admissions and denials which the record shows the witness tp have made, he would have denied the incident to which the'question refers. We must here assume that he would have admitted it. The objection and ruling were of course, on that assumption.
¶6 Of the numerous interesting cases cited in the present brief, we need notice but two. In Jennings v. State, 42 Tex. Cr., R. 78, 57 S. W. 642, the witness had already, before the cross-examination was checked, admitted in full measure his hatred towards defendant.” In State v. Henry 143 Wash. 39, 254 P. 460, the facts shown by the state’s own witnesses moved the Supreme Court to say:
“That any right-minded man, believing that the woman he intended to marry had been forcibly outraged, would not be hostile to the person believed to be guilty, to the full extent of his capacity for hostility, is beyond comprehension, and threats, even to kill, could add nothing.”
¶7 Even in that case, it is said:
“We think the trial court might well have received the offered proof.”
¶8 We fully appreciate, as counsel suggests, that it is a grave matter to reverse this judgment. We also appreciate that the error results from a momentary lapse by counsel and court during the course of a difficult trial otherwise ably and fairly conducted. Yet, since appellant has not had a fair trial, his conviction cannot be sustained. The motion for rehearing must be denied.