
    THOMPSON v. STATE.
    (No. 3600.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.)
    1. Witnesses <&wkey;379 — -Witness for State-Right of State to Impeach.
    Where, in a murder case, the question whether defendant got his pistol from his room before or after the commencement of his controversy with deceased was material, and a witness for the state, testifying contrary to the testimony given by her at the preliminary hearing, stated that he got the pistol before the commencement of the controversy, the state had a right, under Code Cr. Proc. 1911, art. 815, permitting a party introducing a witness who proves hostile to attack his testimony, to introduce evidence tending to discredit her by showing what occurred between the witness and the prosecuting attorneys just before they placed her on the- stand, and that after the killing she lived several months with the family of defendant’s father-in-law.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. &wkey;379J
    
      2. Homicide <&wkey;309 — INSTRUCTION on Man-. SLAUGHTER — EVIDENCE.
    Where the only issues raised by the evidence were murder, as established by the state’s evidence, and self-defense, as claimed by defendant, an instruction on manslaughter should not have been given.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig-. §§ 649, 650, 652-055; Dec. Dig. <&wkey;> 309.]
    3. Homicide i&wkey;340 — Harmless Error — Instruction on Manslaughter.
    Where the testimony of defendant in a murder case showed no prior difficulty between him and deceased other than what occurred at the immediate killing, error in giving, without evidence to authorize it, an instruction on manslaughter, which quoted Pen. Code 1911, art. 1129, subd. 1, providing that provocation must arise at the time of the commission of the offense, and that the passion must not be the result of a former provocation, was harmless.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey;340.]
    4. Criminal Law &wkey;>823 — Harmless Error-Instruction on Manslaughter.
    The giving of an instruction on manslaughter which quoted Pen. Code 1911, art. 1129, subd. 1, providing that provocation must arise at the time of the commission of the offense, and that the passion must not be the result of a former provocation, was not prejudicial, though it was not authorized by the evidence, where the court also stated that in determining whether adequate cause existed at the time of the killing the jury may consider all of the facts and circumstances in evidence occurring both at the time and prior to the time of the killing.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dee. Dig. <&wkey;S23.]
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    Jack Thompson, alias Jim Thompson, was convicted of murder, and appeals.
    Affirmed.
    H. D. Wood, Sam'S. Beene, and A. W. Cameron, all of Pt. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of John West, and his punishment assessed at 10 years in the penitentiary.

The killing occurred between 5 and 6 ic’clock in the evening of August 29, 1914, at the house of Bessie Williams (Joyce), in the the city of Pt. Worth. During said evening the deceased, appellant, and perhaps two other parties were at the house of Bessie Williams, and all of them drank considerable alcohol and were pretty drunk. Bessie Williams was a prostitute. Deceased had kept her for some time. However, he had been away a short while, and for three or four days just before he returned, she said, appellant had stayed with her. He denied this. After carousing some time the other parties left Bessie Williams’ place, leaving only Bessie, appellant, and deceased there. According to the state’s testimony, which was ample to establish that state of facts, about 5 o’clock that evening deceased got into a row with Bessie and slapped her down on the bed. Appellant asked him to desist, and deceased told him he had not anything to do .with her,- and then pushed him out of the house; that appellant then went about a mile from there to the house of May Kelly, where he claimed he had a room, procured his pistol, and, after being gone about 30 minutes, returned to Bessie’s, when, as testified by her, deceased was standing on her porch fixing to make a cigarette, she standing beside him; that when appellant got in 15 or 20 feet from him, without deceased saying a word to him, or making any demonstration whatever, appellant got behind a little tree, got his pistol out, and immediately shot deceased four times, twice in the left side under the heart, another two inches lower, and the other striking deceased in the right side above the hip bone; that when appellant began shooting deceased turned and went back or fell back into the house. I-Ie expired very soon thereafter. The appellant then fled.

The appellant claimed, and so testified, that he went to Bessie Williams’ with and at the instance and invitation of deceased that evening; that he had with him at that time his pistol, having gotten it from his room soon after dinner that day; and that he did not go and get it after his interference in the row between the deceased and Bessie. His version was that when he tried to separate Bessie and deceased when they began fighting that deceased, while they were in the house, grabbed up off of the table a butcher knife eight to ten inches long and attacked him with it; that he then pulled his pistol and began backing, and hacked out of the door, with deceased following after him with the butcher knife, when he shot him the four times in self-defense; that he did not know at that time he had killed him, but left immediately after the shooting; that after he first went to said house in the early part of the evening he did not leave there at all until after the killing.

The next day after the killing an examining trial of appellant was held. May Kelly testified therein. Her testimony was taken down in writing, which she signed and swore to. Just before this trial the prosecuting attorneys had her statement and consulted with her about her testimony.' In effect, she told them that her written statement, which was read over to her at the time, was correct. The state on the trial introduced her as one of its witnesses. In her written statement she had sworn that appellant came to his room at her house about 5 o’clock that evening and got his pistol and left her house. On this trial she went back on that statement, and stated that the time he came and got his pistol was about 3 o’clock that evening, instead of 5 or after. Thereupon, over his objections, the court permitted the state to prove by the prosecuting attorneys what had occurred between them and this witness just before they had placed her on the stand, and also to prove by her that after the killing she went to Lampasas and lived several months prior to this trial with the family of appellant’s father-in-law. Appellant showed that he was a married man, had two children, and that they visited her father at Lampasas and was with them some time. In the argument before the jury, the prosecuting attorneys commented on May Kelly’s change of testimony, and in connection therewith the fact that she had lived with appellant’s father-in-law after her testimony on the examining trial and before this trial. Appellant raises these questions by his bills Nos. 1, 3, and 4. We think the court’s actions and ruling were correct.

It was a material question whether appellant got his pistol at his room at May Kelly’s about 3 o’clock or whether he got it about 5 o’clock, immediately before the killing. The statute is (C. C. P. art. 815) that a party introducing a witness may attack his testimony when facts stated by the witness are injurious to his cause, in every way except by proving the bad character of the witness. There can be no question but that the state relied upon said witness May Kelly testifying on this trial what she had expressly testified to on this point in the examining trial, and which she had told them was correct immediately before they placed her on the stand. When she testified on the stand that appellant got his pistol at 3 o’clock, instead of 5, then the state could attack, as it did, and show that she had been living with appellant’s father-in-law and comment on that fact.

Appellant invokes the rule, which is well established, that it is error to permit the state to impeach its own witness where such witness merely fails to remember or refuses to testify, or fails to make out the state’s case; that a mere failure to make proof is no ground for impeaching said witness. See Mr. Branch in section 866 of his work on Criminal Law, where he collates a large number of authorities to that effect; but that rule is wholly inapplicable here, as shown above. We deem it unnecessary to take up and discuss separately appellant’s bills on this subject. What we have said disposes of all of them.

Appellant complains of one paragraph of the court’s charge on manslaughter wherein he quoted the first subdivision of article 1129, P. C., that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation.

In the first place, manslaughter is not' raised by the evidence. The court should not have changed thereon at all. Only two issues were in this case — murder, as established by the state’s testimony, and self-defense, and that alone, as claimed by appellant’s personal testimony. Besides, there is not the slightest testimony, even if. manslaughter had been raised, that shows any prior difficulty at all between appellant and deceased other than what occurred at the immediate killing according to appellant’s testimony. But, in addition to this, the court expressly told the jury, in his charge on manslaughter, that in considering whether there was adequate cause, etc., this:

“But, in determining whether adequate cause did actually exist at the time of the killing, the jury may look to and consider all of the facts and circumstances in evidence occurring both at the time and prior to the time of the killing.”

So that in no event does the court’s charge present any error.

The judgment is affirmed. 
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