
    GOODEN v. STATE.
    (No. 10765.)
    Court of Criminal Appeals of Texas.
    May 25, 1927.
    Criminal law <&wkey;>1170(2) — Rejection of testimony that deceased was drinking, if error, held harmless in manslaughter case where other witnesses testified that deceased was drunk.
    In prosecution for manslaughter, rejection of testimony that deceased was drinking at time of difficulty, if error, held not reversible, where other witnesses testified without contradiction that deceased was drunk at time he was killed.
    Appeal from District Court, Limestone County; W. T. Jackson, Judge.
    Jay .Gooden was convicted, of manslaughter, and he appeals.
    Affirmed.
    C. H. Machen, of Mexia, and Johnson Wakefield, of Groesbeck, for appellant.
    Sam D: Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of manslaughter; punishment, four years in the penitentiary.

The record contains but one bill of exceptions, which evidences complaint of the refusal of the court below to permit appellant’s witness Mathis to testify that deceased was drinking at the time of the difficulty; it being stated in the bill that said testimony was sought for the sole purpose of showing that deceased was drunk at the time, and that deceased had in his possession choc beer. In view of the fact that a number of other witnesses testified without any contradiction that deceased was under the influence of liquor and drunk at the time he was killed, we are not at all inclined to think that the rejection of the testimony was of such materiality as to call for a reversal of this case.

Appellant admitted that he cut deceased, from the result of which deceased came to his death. He claims that he cut him in self-defense. A number of other people testified to- the facts surrounding the cutting, from which appellant’s guilt of a graver offense than manslaughter would seem probable. The jury, however, having accepted appellant’s theory of the case to the extent that they reduced his offense from murder to manslaughter, we are not called on to disturb same.

Finding no error in the record, the judgment will be affirmed.  