
    FISHER v. STATE.
    (No. 11156.)
    Court of Criminal Appeals of Texas.
    Nov. 16, 1927.
    Eehearing Denied Eeb. 8, 1928.
    1. Witnesses <&wkey;>337(6) — Permitting question to accused in murder prosecution, whether he had been previously indicted for .murder, held not error.
    In prosecution for murder, permitting question while accused was testifying in his own behalf if he had not been indicted for murder in 1922 held not error, since one taking witness stand in his own behalf becomes thereby subject to every attack on his credibility to which any other witness may be subjected.
    2. Witnesses &wkey;>345(l) — Proof that witness has been indicted for felony is proper attack upon his credibility.
    Proof that one has been indicted or legally charged with felony is proper attack upon credibility of witness.
    3. Homicide &wkey;>250 — -Evidence held to justify conviction for murder.
    In prosecution for murder of defendant’s wife, in which defendant pleaded guilty and state introduced testimony showing that he stabbed and killed his wife, evidence held sufficient to justify conviction.
    On Motion for Eehearing.
    4. Criminal law <&wkey;>1028 — Matters complained offer first time on appeal, held not reviewable, even where death penalty was inflicted.
    Court of Criminal Appeals cannot consider matters such as were complained of for first time on appeal, even where death penalty was inflicted.
    5. Criminal law <&wkey;l043{l) — Appellant’s complaint that he was .misled into entering plea of guilty, believing death' penalty would not be insisted on, did not raise issue that district attorney acted improperly.
    Accused’s complaint that he was misled into entering plea of guilty in murder prosecution, believing death penalty would not be insisted upon, did not raise issue on appeal that district attorney had acted improperly, where, in motion for new trial, he stated he was induced by his attorney to plead guilty under impression that district attorney would not ask for death penalty, and by affidavit district attorney affirmed that he did not agree to waive death penalty.
    
      6. Homicide <&wkey;316 — 'Trial court properly denied new murder trial on ground defendant was misled into pleading guilty, believing death penalty would not be imposed where affidavits did not show agreement.
    Trial judge properly overruled motion for new trial in murder prosecution on ground that defendant was misled into entering plea of guilty believing district attorney would not insist on death penalty, where in motion defendant stated, that he was induced by his attorney to plead guilty under impression that, if he did so, district attorney would not ask for death penalty, and his attorney did not assert .that district attorney misled him into advising plea of guilty, and district attorney by affidavit positively affirmed that he did not agree to waive death penalty, but at all times refused to enter into agreement to do so. ,
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Willie Eisher was convicted of murder, and he appeals.
    Affirmed.
    W. A. Rowe, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, death.

Appellant pleaded guilty. The state introduced testimony sufficiently showing that he stabbed and kiUed his wife. The proceedings surrounding the reception and entry of the plea of guilty appear to have been in conformity with law. There is but one bill of exceptions, which complains of the fact that,, while appellant was testifying in his own behalf, he was asked if he had not been indicted for murder in 1922. There is nothing in the objection. One who takes the witness stand in his own behalf becomes thereby subject to every attack upon his credibility to which any other witness may be subjected. Proof that one has been indicted or legally charged with a felony is held by us to be a proper attack upon the credibility of a witness.

Appellant complains in his brief and his oral argument of the fact that the district attorney did not keep an agreement claimed to have been made with appellant to the effect that, if he'would plead guilty, the state’s attorney would not insist upon the death penalty. There is no sufficient showing in the record of any such agreement. There was no testimony before the trial court supporting such a proposition. There is no bill of exceptions complaining of anything which would sustain this contention.

We are not in accord with appellant’s contention that the evidence does not justify the verdict and judgment. Following quarrels and contentions with his wife on the day of the killing, it appears that appellant came back to his home after a short absence, and in the presence of other people told his wife that he was going to kill her, and told other people present if they interfered he would kill them. There is some testimony to the effect that he was under the influence of liquor. He stabbed his wife in the left breast, the knife entering the heart. In view of the infliction of the extreme penalty of the law, we have examined each question raised, but are of the opinion that no error appears in any of them.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We find ourselves unable to take cognizance of certain things mentioned in appellant’s motion for rehearing because of the fact that no objection was made when they transpired on the trial. While this court has always been liberal in dealing with a record where the death penalty was inflicted, we cannot consider matters such as are here complained of for the first time on appeal.

AppeUant’s complaint that he was misled into entering a plea of guilty, believing the death penalty would not be insisted upon, in no wise raises an issue that the’district attorney had acted improperly. In his motion for new trial, appellant only goes far enough to say he was induced by his attorney to plead guilty “under the impression” that, if he did plead guilty, the state through its criminal district attorney would not ask'for the death penalty. Appellant’s affidavit attached to the motion still further shows that he reached such impression through what his own attorney told him. His attorney nowhere asserts that the district attorney misled him into advising a plea of guilty. By affidavit, the district attorney positively affirms that he did not agree to waive the death penalty, but at all times refused to enter into any agreement to do so. The learned trial judge could do nothing but overrule the motion for new trial based upon .the record, and, as a reviewing court, we have no option but to sustain the ruling.

The motion for rehearing is overruled. 
      @=>For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     
      <Js»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     