
    EVANS v. STATE.
    (No. 3366.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Witnesses (§ 380) — Impeachment — Right to.
    In a prosecution for assault to murder, a witness introduced by accused failed to testify, as expected, that the complaining witness was armed at the time of the assault. The witness did not testify adversely to accused. Sold that, under Code Cr. Proc. 1895, art. 795, authorizing'a party to impeach his own witness for testimony adverse to his cause, accused could not impeach his witness by proof of his declarations out of court that the complaining witness was armed.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 380.]
    2. Homicide (§ 142) — Prosecution — Evidence.
    In a prosecution for assault to murder, the question whether the prosecuting witness, who admitted trouble with an interurban conductor some months before, was at that time armed with a pistol, is immaterial on the issue of accused’s plea that he acte<[ in self-defense because the witness was armed.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.)
    3. Witnesses (§ 383) — Impeachment.
    A witness cannot be impeached on an immaterial issue.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1224; Dec. Dig. § 383.]
    Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    Peter Evans was convicted of assault to murder, and he appeals.
    Affirmed.
    A. E. Masterson, of Angleton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant introduced Stirks Williams as a witness, and, among other things, sought to prove by the witness that on the night of the difficulty he saw Charley Taylor, the person shot by appellant, with a pistol. The witness testified: “I heard shots that night; I heard two shots, .and they were in rapid succession. I did not notice whether Charley Taylor had a pistol that night or not.” It will be noticed that the witness testified to no fact injurious to appellant, but only failed to testify to a material fact that defendant expected to prove by him — that he saw Charley Taylor with a pistol that night. When the witness failed to testify as appellant expected him to testify, and stated, instead, “I did not notice whether he had a pistol that night or not,” appellant sought to lay a predicate to impeach him, and asked him “if he did say in the presence of Tom Hennessy, A. R. Rucks, A. E. Masterson, and Bob Britton that on the night of the alleged assault he did see Charley Taylor with a pistol.” The court sustained an objection to this question. Appellant then introduced Tom Hennessy, and sought to prove by him that he had heard Stirks Williams say that on the night of the assault he saw Charley Taylor with a pistol, and that he had cocked and presented it at him and demanded to know who it was. Appellant was desirous of proving that the prosecuting witness had a pistol that night. It was material to his defense, but could he make the proof in this indirect way? Had he been permitted to prove that Stirks Williams had made the statement, it would have been no evidence that Charley Taylor had a pistol; it would only have been admissible as evidence to impeach the testimony of Stirks Williams. A party is only permitted to impeach his own witness when he is surprised by his testimony, and the witness testifies to facts which are hurtful to his defense. It. may be that, appellant was surprised at tlie witness declining to make this proof, but, as be testified to no fact hurtful or harmful to his defense, he would not be permitted to impeach his own witness. Article 795 of the O. O. P. provides that: .

“The rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner, except by proving' the bad character of the witness.”

Had Stirks Williams testified to any fact injurious to appellant’s cause, then he should have been permitted to attack his testimony, but, as the witness simply failed to testify to facts that appellant was desirous of proving by him, this would present no ground to impeach him. Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904; Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Einley v. State, 47 S. W. 1015.

When the prosecuting witness, Charley Taylor, was testifying, defendant, on cross-examination, asked him if in December,

1912, while on the interurban car between Houston and Galveston, he had not had trouble with the conductor. The witness admitted having trouble with the conductor, and that they cursed each other, but he denied having a pistol, stating he had a shotgun. The appellant desired to impeach him, and offered Charley -De Brell as a witness, and this witness would have testified that Charley Taylor did have a pistol on that occasion. The shooting for which appellant was prosecuted took place on the 1st day of March, 1913, some three months after the interurban car incident, and whether or not Charley Taylor had a pistol on that occasion was not a material issue in this case, and the court did not err in sustaining the objection to the witness De Brail’s testimony. It is not permissible to impeach a witness upon an immaterial issue. Rainey v. State, 20 Tex. App. 485; McCray v. State, 38 Tex. Cr. R. 611, 44 S. W. 170; Holland v. State, 60 Tex. Cr. R. 117, 131 S. W. 563.

These are all the bills of exception in the record. No exceptions were reserved to the charge as given,.and no special charges requested.

The judgment is affirmed.  