
    BAKER v. STATE.
    (No. 10880.)
    Court of Criminal Appeals of Texas.
    May 11, 1927.
    Rehearing Denied June 15, 1927.
    1. Witnesses &wkey;»337(6) — Cross-examination of defendant, prosecuted for assault with intent to murder, showing indictment for theft six years previous, held' admissible to affect credibility.
    In prosecution for assault with intent to murder, cross-examination of defendant to prove indictment by grand jury six years previous for theft, was properly admitted as affecting credibility of defendant.
    2. Witnesses <&wkey;337(6) — Cross-examination of defendant, prosecuted for assault with intent to murder, showing indictment for theft six years previous, held not objectionable as remote.
    In prosecution for assault with intent to murder, cross-examination of defendant, showing indictment for theft six years previous, held not -objectionable as too remote.
    On Motion for Rehearing.
    3. Criminal law &wkey;>66l — Rules of evidence cannot be varied because more or less hurtful to accused in different cases.
    Rules governing reception of evidence cannot be varied on hypothesis that in one case it might be more hurtful, and in another case less hurtful, to accused.
    Commissioners’ Decision.
    Appeal from District Court, Guadalupe County; Lester Holt, Judge.
    Bill. Baker was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    P. E. Campbell and Dibrell & Mosheim, all of Seguin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

Appellant was convicted for the offense of assault with intent to murder, and his punishment assessed at two years in the penitentiary.

The appellant and the injured party, John Wright, met in a small storehouse, or drink-stand, in Gander slough in Guadalupe coun'ty. ■ When'¡the injured party- stepped into-the store, the appellant and some other parties -were ■ quarreling,v and appellant and Wright' had some -..yords, and the shooting followed; Wright was'unarmed. Appellant shot him several times — once in the ear, once •in the shoulder blade, -one shot passing between the jugular vein.and the neck bone, and once in the chest.

The appellant defended on the ground of self-defense. Appellant testified that Wright was drunk; that Wright blew smoke in appellant’s face; that appellant was trying to get away from Wright; and Wright advanced upon appellant and struck him, causing his nose to bleed, -and inflicting-other bruises on his face. Appellant testified that he knew Wright was a dangerous man. when he was drinking; that’he was afraid of him. See opinion on former appeal of this case in 280 S. W. -781.

The learned trial-judge submitted the law of 'self-defense, and also charged on aggravated assault. No exceptions were made to the court’s charge.

There are- but two bills of exception in- the record, both of which complain that the state, over, .appellant’s objection, was permitted to prove by appellant, on cross-examination-, that he had been indicted by a grand jury of Guadalupe county in November, 1920 (six'years prior to the trial of the instant case), for the theft of a mule and for theft of property over the value of $50. Appellant objected to this testimony on the ground same was too remote, and further because said testimony was extraneous matter, and had no bearing whatever upon the issues before the jury, and was irrelevant .and immaterial.

We do not think that these exceptions are well taken. The testimony complained of was admissible as affecting the credibility of the' appellant. We do not think the testimony ’too remote. The question has often been passed on by this court. For a full and able discussion of the matter complained of in these- two bills, reference is made to Bibb v. State, 86 Tex. Cr. 118, 215 S. W. 312; and Couch v. State, 103 Tex. Cr. R. 188, 279 S. W. 821.

The facts are sufficient to support the verdict. . There being no' errors; in the record, the judgment is affirmed. .

■PER GURÍ AM. 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.

MORROW, PI J.,' not sitting.

On Motion for Rehearing.

LATTIMORE, J.

If we comprehend appellant’s contention in his motion for': rehearing, it’ is that the- evidence before the jury was on such close lines as that- the introduction . of the fact that appellant had been charged with a felony some six years prior to his trial in the instant case might have turned the scales against him in the estimation of the jury; it.being contended in the motion that appellant was wrongfully charged with the offense inquired about. There is nothing in either of the bills of exception which complain of the introduction of this testimony shedding light upon the manner or cause of appellant’s indictment for the crimes inquired about. .It is shown in the bills that the cases against him were dismissed. We regret that we cannot agree with appellant’s contention. The testimony was receivable under the well-settled rules' laid down by this court. We cannot vary the rules governing the reception of evidence upon the hypothesis that in one case it might be more hurtful, and in another case less hurtful, to the accused.

The motion for rehearing is overruled. 
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