
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 16, 1912.
    Rehearing Denied Nov. 13, 1912.)
    Criminad Law (§ 824) — Impeaching Testimony-Effect.
    In a trial for robbery, it was not reversible error to omit to instruct as to the purposes for which accused elicited testimony on the prosecuting witness’ cross-examination, which showed contradictory statements by that witness concerning an alleg'ed robbery of him by accused at another time and place, where accused requested no special instructions, and the trial judge in his charge limited the jury to consideration of the particular offense.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§, 1996-2004; Dec. Dig. § 824.]
    Appeal from District Court, Howard County; J. L. Shepherd, Judge.
    John Harris was convicted of robbery, and he appeals.
    Affirmed.
    Goodson & Goodson, of Comanche, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is the second appeal in this case, the opinion in the case on the former appeal being found in 55 Tex. Cr. R. 469, 117 S. W. 839. The facts there are so fully stated we do not deem it necessary to again state them. On this trial appellant was found guilty again of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

On this trial the state introduced testimony alone as to the taking of the $12 from Mr. Burleson at the home of defendant. On cross-examination, the defendant developed the facts in regard to the alleged taking of the $100, and showed contradictory statements of the prosecuting witness. On this impeaching testimony, defendant claims the court should have affirmatively submitted the defense suggested thereby. No witness testifies to any fact showing a rightful or innocent taking of the money. The only way the issue is sought to be raised is by proving contradictory statements of the state’s witness. This would only go to the truthfulness or weight to be given the testimony of the witness Burleson, and would raise no affirmative issue. This court has frequently held that impeaching testimony is not of sufficient probative force alone upon which to base a verdict (Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148), and under such a state of facts an affirmative charge is not necessary.

As hereinbefore stated, the defendant, on cross-examination of Burleson, elicited the fact that the witness claimed defendant had also robbed him of $100’ at another time and place. This apparently was done in order to prove contradictory statements in regard to this latter transaction, and by facts and circumstances show that such second taking was claimed to have been done in an unreasonable mode and manner, and thus discredit the witness’ testimony in regard to the taking of the $12. Appellant requested no special instructions in regard to this testimony adduced by him, but in the motion for new trial complains that the court erred in failing to limit the purposes for which it was admitted. If under the charge as given it was possible for the jury to have been misled, and perhaps convicted the defendant of this latter offense, his contention would be sound. The.,court, however, in his charge limited the jury to considering the taking of the $12 alone; consequently the failure of the court to instruct as to the purposes for which the defendant elicited the testimony in regard to the matter thus introduced would not present reversible error.

There are no bills of exception in the record, and the only other ground in the motion alleges that the testimony is insufficient to sustain the conviction. If the jury gave credence, as they evidently did, to the testimony of Mr. Burleson in regard to the taking of the $12, it fully supports the verdict. As hereinbefore stated, the facts are stated in the former opinion in this case, and in regard to the taking of this $12 the testimony is substantially the same.

The judgment is affirmed.  