
    MILLER v. STATE.
    (No. 10172.)
    Court of Criminal Appeals of Texas.
    March 16, 1927.
    State’s Rehearing Denied May 11, 1927.
    I. Witnesses c&wkey;360 — Refusal to permit defense witness, shown by state to have been indicted for theft, to explain charges and remove imputation of untruthfulness, held error.
    Where state, in prosecution for murder, proved on cross-examination that witness for defendant' had been indicted for theft, it was error to refuse to permit witness to explain charges against him for purpose of removing imputation of untruthfulness.
    ■2. Homicide <&wkey;295(3) — Instruction restricting jury to provocation by deceased as defense to charge of murder growing out of fight between several parties held error.
    In prosecution for murder growing out of fight in which defendant, deceased, and others participated, instruction on manslaughter that passion, causing act arising from provocation by some other person than deceased or other persons acting with deceased would not be sufficient restricted jury to provocation by deceased, and was error.
    3. Homicide &wkey;295(l) — Instruction on provocation should submit conduct of persons acting with deceased in determining provocation necessary for manslaughter.
    In prosecution for murder growing out of fight between defendant, deceased, and others, jury should have been instructed to consider acts and conduct of others acting with deceased at time of homicide in determining provocation necessary for manslaughter.
    4. Homicide <&wkey;295(2) — Issue whether homicide was provoked by others .than deceased held raised by testimony making refusal of charge thereon error.
    In prosecution for murder, testimony that deceased and others were acting together in fight resulting in homicide raised issue of provocation for homicide by others than deceased, making refusal of charge thereon error.
    On Motion for Rehearing.
    5. Witnesses &wkey;>360 — Witness may explain any fact produced by other party attacking witness’ integrity.
    Witness in criminal ease has right to explain any fact brought out against him by other party which tends to create distrust of truthfulness or integrity of witness. 1
    6. Witnesses &wkey;»345(l) — Testimony that witness has been charged with crime is admissible to affect his credibility.
    In criminal cases, testimony that one has been charged with crime is admissible to affect credibility of person so charged as witness in court.
    7. Witnesses &wkey;»360 — Explanation of charge against witness that he has been indicted for crime should be confined to witness alone.
    Where credibility of witness in criminal case is attacked by proof that he has been charged with crime, explanation of such charge should rest with witness, and other witnesses may not be called on issue.
    Commissioners’ Decision.
    Appeal from District Court, Williamson County; Cooper Sansom, Judge.
    John Miller was convicted of murder, and be appeals.
    Reversed and remanded. ‘
    E. T. Branch, of Houston, for appellant.
    C. G. Krueger, of Bellville, Critz & Lawhon, of Taylor, Wilcox and Graves, of Georgetown, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of murder, and his punishment assessed at seven years in .the penitentiary.

.The record discloses that the appellant and Foster Bell were jointly indicted in Austin county for the offense of murdering Robert Schaffner by shooting and killing him with a gun on or about the 5th day of September, 1922, and that on change of venue the-appellant was convicted of said offense in Williamson county. The record further discloses that the deceased, Robert Schaffner, and Tommy Bell had engaged in a fight prior to the homicide, and that thereafter the Bell boys and other parties acting with them engaged in a fight with the deceased and his father, F. C. Schaffner, in the town of Sealy, with the result that Robert Schaffner, his father, F. C. Schaffner, and two of the Bell boys were killed. It was the contention of the state that the appellant, acting with the Bell boys and other parties, was an actual participant in precipitating the fight, and took an active part therein, and that his acts and motives were prompted by malice towards the said F. 0. Schaffner, deceased. While the appellant failed to testify in his own behalf, he defended upon the ground, and introduced testimony to the effect, that he was not acting with the Bell boys and others in the fight, but, on the contrary, that he was standing near the scene of the difficulty, engaged in a conversation with one Will Phenice, when the fight began, and suggested to said Phenice that they separate the parties, and that this was his only connection with the affray.

Appellant’s counsel rely upon two prop-positions for a reversal of this case. In bill of exception No. 1 the appellant complains of the action of the court, after the witness Will Phenice had testified favorably to appellant’s defense, and the state, on cross-examination, had proved by said witness that he had been indicted for theft, in refusing to permit the witness, on redirect examination, to testify and explain the circumstances of said indictment for the purpose of removing the imputation of untruthfulness that had been cast upon his testimony, and for the purpose of reinstating the witness before the jury. Upon objection by the state; the court refused to permit said witness to make the explanation, but offered to permit said witness to testify as to what became of the charges against him. We are of the opinion that the learned trial judge fell into error in refusing to permit this witness to explain said charges against him and to reinstate himself, if he could, before the jury by removing the blond placed upon him and his testimony by reason of said charges. Tippett v. State, 37 Tex. Cr. R. 186, 39 S. W. 120; Wallace v. State, 82 Tex. Cr. R. 588, 200 S. W. 407; Skinner v. State, 94 Tex. Cr. R. 371, 251 S. W. 810; Randell v. State, 102 Tex. Cr. R. 410, 278 S. W. 210.

The appellant also complains of,'and at the proper time objected and excepted to, the following portion of the court’s charge on manslaughter:

“(b) The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed or other persons acting with the party killed.”

The appellant contends that this charge was too restrictive in that it did not permit the jury to take into consideration the acts and conduct of F. C. Schaffner, Hauley Vireck, and other persons acting with them, but restricted the jury to the consideration alone of .the acts and conduct of Robert Schaffner, deeased, while the evidence showed that the other parties were acting with him at said time. We are of the opinion that the appellant’s contention will have to be sustained, and that the learned trial judge should not have restricted the jury to the provocation ’of Robert Schaffner alone, but should have instructed them to consider the acts and conduct of others who were acting with him at the time of the homicide. This issue was clearly raised by the testimony introduced in behalf of appellant to the effect that Robert Schaffner, deceased, and his father, F. O. Schaffner, deceased, Ernest Schaffner, and Hauley Vireck were acting together in the fight. This court has held many times that it was error to restrict a manslaughter charge to the acts and conduct of one party alone where others were acting with such party at said time. Byrd v. State, 39 Tex. Cr. R. 609, 47 S. W. 721; Stacy v. State, 48 Tex. Cr. R. 97, 86 S. W. 327; Brown v. State, 54 Tex. Cr. R. 127, 112 S. W. 80; Garcia v. State, 70 Tex. Cr. R. 485, 156 S. W. 941; House v. State, 75 Tex. Cr. R. 338, 171 S. W. 210; Claxton v. Stare, 105 Tex. Cr. R. 308, 288 S. W. 449.

For the errors above discussed, the judgment of the trial court is reversed and remanded.

PER CURIAM. 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.

On Motion for Rehearing.

LATTIMORE, J.

The state urges in its motion that we were wrong in holding that the trial court’s refusal to let witness Phenice explain the theft charge, which the state proved had been lodged against him, was error on the part of the lower court. It is contended that recent decisions of this court go further in reference to letting in detailed explanations in such eases than the earlier holdings of the court do. It has been the uniform rule, since the days when the Supreme Court had appellate jurisdiction of criminal cases in Texas, that a witness has the right to explain any fact brought out against him by the other party which tends to create distrust of the truthfulness or integrity of the witness. State v. Ezell & Ivey, 41 Tex. 38; Kunde v. State, 22 Tex. Cr. App. 98, 3 S. W. 325; Bruce v. State, 31 Tex. Cr. R. 594, 21 S. W. 681. The general principle thus announced is believed to be the same as that here involved. In Tippett v. State, 37 Tex. Cr. R. 191, 39 S. W. 120, we seem to have first spoken directly on the point involved. A witness was shown in that case to be under indictment for theft. We said in our opinion that on re-examination by the party introducing him the witness should have been allowed to state that he was a bona fide purchaser of the alleged stolen cattle, and that he had not stolen them. In Cowart v. State, 71 Tex. Cr. R. 116, 158 S. W. 809, we said that, if the state proved that the accused had been indicted for embezzlement, he had the right to explain, at least in a general way to show the cases amounted to nothing, and that he was never tried or convicted upon them, and that they were dismissed. We also said: “He might not go into details of the transactions.” The state relies in the motion before us on what is said in the Cowart Case, supra, and the Howard Case, 53 Tex. Cr. R. 378, 111 S. W. 1038. We think the Howard Case not in point, but clearly distinguishable. In that case the witness proved to be under indictment, was not asked about such fact or to make any explanation, but the accused placed on the witness stand the attorney who represented tbe witness referred to, and offered to prove by the attorney that he had investigated the charges against his client, and that there was no foundation for such charges. This testimony was rejected, and we correctly upheld its rejection. In the Tippett Case, supra, the doctrine of the instant case is announced, not so much in detail, but substantially, for, if one against whom it has been shown that he is under indictment may testify he did not steal the property in question, but bought it and paid for it in good faith, the Rubicon is crossed, and the domain .of detail is invaded. In the Cowart Case, supra, we are at some loss to know just what the great judge writing the opinion meant when he said therein, if one had been asked il' he was under indictment, arid admitted it, that he might explain in a general way and show that the case amounted to nothing, and might show that the case had been dismissed or never tried. We are constrained to believe that, if the attention of the judge of this court writing that opinion had been focused on this exact point, and the decision in the Tippett Case, supra, had been brought before hita, as well as those cases announcing the general principle above referred to, he probably would not have used the expression in the opinion which is relied on by the state here, but would have’ expressed himself, as was his wont, with vigorous clarity, and in accord with the doctrine of the recent cases. How could one explain, even in a general way, so that the explanation would have any weight or be of value, without some details?

There is a difference between tlie rule in civil cases and in criminal cases in this state in regard to admitting testimony that one has been charged with crime as affecting the credibility of the person so charged, as a witness in court. The practice in criminal cases allows such proof. Manifestly, when one has been so charged, and the case against him has subsequently been dismissed or an acquittal had, the question of the reflective force of proof of the fact that he has been charged merely might be doubtful. If either party know in advanee — and the very fact of asking such question would afford ground for presumption of such knowledge— that the charge against the witness has been dismissed, or that he has been acquitted, it would seem to be fair for such party to .ask of the witness if he has* not been so charged, under peril of having the party thus attacked make his statement that he was not guilty, or make such explanation as he reasonably desires in connection 'therewith. Upon the testimony of such attacked witness, however, we think the matter should rest, and that other witnesses might not be called on the issue, as was attempted in the Howard Case, supra. To us this rule seems fair. Even if one who admits that he has been convicted attempts to make some explanation in mitigation or refutation of the reflection resulting frorq, such proof, and the attacking party be denied the right to introduce testimony controverting this issue, it still seems the attacking party would have the best of the argument. We are unable to agree with the state’s contention in this regard.

Upon the other proposition advanced in the motion, viz. that we erred in holding the charge on manslaughter too restrictive because it did not permit the jury to take into consideration the acts and conduct of others beside the deceased, we are constrained, upon re-examination of the record, to think we were correct. Careful analysis of the charge excepted to shows that in fact the trial court in effect told the jury that they could not take into consideration the acts of persons acting with deceased in arriving at a solution of appellant’s claim that he was acting under passion arising from an adequate cause in killing deceased.

The state’s motion for rehearing is overruled.

MORROW, P. J., not sitting. 
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