
    DENMARK v. STATE.
    (No. 7446.)
    (Court of Criminal Appeals of Texas.
    June 20, 1923.
    Rehearing Denied Oct. 17, 1923.)
    (.Witnesses &wkey;370(4) — Witness’ relations with defendant admissible to show animus.
    That one of accused’s witnesses was living with him as his wife is admissible to show her animus.
    2. Witnesses <&wkey;287(l) — ’Witness privileged to explain contradictory statements on rebuttal.
    In a prosecution for assault with intent to murder, where prosecuting witness on cross-examination gave an affirmative answer to the question whether he informed the sheriff that the shooting was an accident, and sheriff testified that prosecuting witness told him that defendant claimed it was an accident, but it was not in fact, it was proper, under Code Cr. Proc., 1911, art. 811, to permit prosecuting witness to be recalled, and to explain that sheriff’s statement as to what was said was correct.
    On Motion for Rehearing.
    3. Homicide &wkey;>257(I) — Evidence held to support conviction for assault with intent to murder.
    Evidence that following some trouble with prosecuting witness defendant left a dance, went away, got a shotgun, came back, and shot prosecuting witness held to support a conviction for assault with intent to murder.
    4.Criminal law &wkey;>-957(5) —Juror’s affidavit held insufficient to vitiate verdict.
    A juror’s affidavit that the jurors, did not want to find accused guilty of aggravated assault because he might have to work out his fine at the expense of the county, and that they concluded to find him guilty of assault with intent to murder, without giving the statement of any of the jurors, held insufficient’to vitiate the verdict.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Milton Denmark was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of two years.

Martin Grant received a gunshot wound from a gun in the hands of the appellant. It occurred at a gathering or dance at the home of Grant. 'From the state’s testimony, the inference of malice was deducible. Appellant in his testimony advanced the theory of an accidental discharge of the gun.

The witness Bertha Reed testified to matters material to the defense. By questions propounded to her the state’s counsel endeavored to show that she was living with the appellant in the same house and as his wife. She did not answer the questions. The bill reveals no error. Her relations with him were admissible to show her animus. A case in point is Crist v. State, 21 Tex. App. 366, 17 S. W. 260. See, also, Branch’s Ann. Tex. Penal Code, § 163, p. 94.

While Grant was on the Stand, and after he had testified giving his version of the alleged assault, he was asked upon cross-examination if he had not on the same night that he was injured told the sheriff, Mr. Reeves, that it was an accident. To this he gave an affirmative answer. He was later recalled, and permitted to state that he had told Sheriff Reeves that appellant claimed that it was an accident, but that in fact it was not an accident. Reeves gave testimony, in substance, to the same effect. The appellant having put in issue the declarations of Grant in his conversation with Reeves, apparently it was permissible for the state, either in redirect examination or rebuttal, to permit the witness to give in full his version of the conversation. The witness having been attacked by a contradictory statement, he was privileged to explain it. Ball v. State (Tex. Cr. App.) 36 S. W. 448; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Branch’s Ann. Tes. P. C. §§ 93, 94. The witness Reeves testified to the conversation with. Grant in which Grant told him that appellant was claiming the shooting to be an accident, but that, in fact, it was not an accident. The appellant having elicited from Grant on cross-esamination a part of the conversation with the sheriff, it was clearly permissible for the state, under article 811 of C. C. P., to have detailed the whole of the conversation, upon the same subject. As the matter appears in the récord, we are of the opinion that no reversible error was committed in receiving Grant’s version of the conversation with the sheriff.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that we erred- in not holding the evidence insufficient to support a conviction for assault to murder. We have again reviewed the testimony. Following some trouble with prosecuting witness appellant left a dance, went away, got a shotgun, came bach, and shot prosecutor. He lived about a mile distant from the home of prosecutor, at which the dance was in progress. When he got bach with the shotgun his first words were an inquiry for “that bully.” In his own testimony appellant said that Grant, the injured party, replied, “Here is that damned bully,” and started toward him. In a rather confused explanation of what then occurred appellant said that Grant caught hold of the muzzle of the gun, and that he (appellant) shot Grant “so he could get loose and run.” The evidence seems to us to amply support the theory that because of the quarrel with Grant appellant went away, got his shotgun, and came back, and with no further provocation shot Grant in the shoulder. This would seem to support the jury’s conclusion that the shooting was upon malice and with intent to kill.

The verdict of the jury cannot be attacked by the character of affidavit made by one of the jurors in this ease. Without giving the statement of any of the jurors, he says in his affidavit that they did not want to find the -accused guilty of aggravated assault because he might have to lay out or work out his fine at the expense of the county, and that they concluded to find him guilty of assault to murder. Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Bacon v. State, 61 Tex. Cr. R. 206, 134 S. W. 690; Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128; McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230; Hamilton v. State, 64 Tex. Cr. R. 175, 141 S. W. 966; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405.

The motion for rehearing will be overruled. 
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