
    DANIELS v. STATE.
    (No. 10781.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    1. Criminal law <&wkey;76l(l2)—Charging jury to place themselves in defendant’s position when he killed deceased held' error as on weight of evidence.
    In murder prosecution where there was evidence raising issue that some person other than defendant killed deceased, charge that it was jury’s duty to place themselves in position of defendant when he killed deceased held error as charge on weight of evidence.
    2. Criminal law <&wkey;>ll69(5)—Error in admitting testimony that appellant had! shot his uncle in 1910 or 1911 held not cured by its subsequent withdrawal.
    In murder prosecution, error in admitting testimony that defendant had shot his uncle in 1910 or 1911, because defendant was never indicted and evidence was too remote, held not to have been cured by its subsequent withdrawal.
    3. Criminal law &wkey;>1163(1)—Court of Criminal Appeals resolves doubt in defendant’s favor, where error potentially harmful is made.
    Where error calculated to injure defendant clearly appears to have been made by trial court, the Court of Criminal Appeals resolves any doubt of injury it may entertain in favor of defendant.
    Commissioners’ Decision.
    Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.
    Robert Daniels was convicted of murder, and he appeals.
    Reversed and remanded.
    J. S. Simkins and R. R, Owen, both of Cor-sicana, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

Appellant was convicted of the murder of Floyd Gowan, alleged to have occurred on July 3, 1926, his punishment being fixed at ten years'confinement in the penitentiary..

Appellant seems to have been tried upon the theory that he shot at one Earl Davis and accidentally hit Floyd Gowan, the deceased.

The testimony indicates that the relative position of the three parties at the time of the occurrence was such that lines drawn from one to the other would approximate an equilateral triangle. It was dark, and the witnesses testified that they did not know who did the shooting, except Earl Davis, who testified to having seen the flash of a gun in the direction of the defendant. One witness for the state .testified that three shots were fired. Appellant testified he shot only twice at Davis and did not shoot at or see deceased. No feeling existed between the deceased and appellant, and it does not appear from the evidence that appellant could have had any motive for killing the deceased. The difficulty between appellant and Davis arose over attentions'which Davis had paid to the wife of appellant. The contention was made in the trial that in the m§lee some one else fired the shot that killed Floyd Gowan, and that it was impossible for a bullet, fired directly from the point where defendant stood in the' direction of where Davis sat in his car, to have hit the deceased. As previously stated, their relative position was that of the three apexes of an equilateral triangle. It was shown that Davis had a brother standing near who was taking some part in the controversy.

The testimony is rather unsatisfactory. We think, however, that there was enough evidence to raise the issue that some person other than appellant killed the deceased. The trial court recognized the existence of this issue and instructed the jury, in substance, that if the bullet which struck the deceased, Floyd Gowan, was fired by some person other than defendant, to acquit.

In presenting the issue of self-defense in paragraph 11 of his charge, however, the learned trial judge used this language:

“It is your duty to place yourself in the position of Robert Daniels when he shot and killed Floyd Gowan.”

Exception was timely presented to this charge for the reason that it was upon the weight of the evidence in that it told the jury that deceased was killed by the defendant when same was a disputed issue.

In view of the issue made as to who killed the deceased, this pointed statement of the court to the jury that defendant had done so was erroneous. The charge of the court, other than this, appears to have been an exceptionally lucid and fair presentation of the law of the case to the jury.

The further question is presented by defendant’s bill of exception No. 1 that the court permitted the introduction, over defendant’s objection, of testimony that appellant had shot at his uncle, Bill Patterson, in 1910 or 1911. The record shows that appellant was never indicted for this offense. This testimony was inadmissible, both because no indictment had ever been returned, and because same was too remote. After the evidence was all in, the court withdrew this testimony from the jury.

In view of the kindred nature of the said transaction and the instant case, this court cannot be certain that appellant was not injured by the admission of this testimony. Where evidence is of a material and prejudicial character and introduced over defendant’s- objection, its subsequent withdrawal does not cure the error. Payne v. State, 89 Tex. Cr. R. 529, 232 S. W. 802; Graham v. State, 98 Tex. Cr. R. 259, 265 S. W. 592; Latham v. State, 75 Tex. Cr. R. 575, 172 S. W. 801. Neither, of the two errors above discussed may have injured appellant, but that either and especially both together may have done so is beyond question. We think it is our duty, where an error calculated to injure the appellant clearly appears to have been made by the trial court, to resolve any doubt of injury we may entertain in favor of, and not against, appellant.

Because of the two errors above discussed, this cause is reversed and remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
      <3&wkey;For other cases see same topic and KEV -NUMBER in ail Key-Numbered Digests and Indexes
     