
    ALEXANDER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1912.)
    1. Witnesses (§ 380) — Credibility — Impeaching Own Witness.
    Under Code Cr. Proc. 1911, art. 815, which modifies the rule forbidding a party to attack his own witness’ testimony, by permitting such attack when facts and testimony are injurious to his cause, but not by impeaching his character, the prosecuting attorney, after a witness for defendant, on trial for murder, had testified that deceased had an open knife in his hand, and had said that he was going to kill some one thereabouts that night, and after asking the witness on cross-examination what defendant was doing and saying, without eliciting desired responses, was entitled, to ask a witness if he did not testify to a certain state of facts before the grand jury, and upon his denial to prove by a witness that he had so stated before the grand jury, since the witness, even if considered as a state’s witness, had testified injuriously.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §| 1210-1219; Dec. Dig. § 380.]
    2. Criminal Law (§ 1090) — Appeal — Necessity oe Biel op Exceptions.
    Where no bills of exceptions are reserved, matters complaining of the admission of certain testimony cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    3. Homicide (§ 340) —Appeal — Harmless Error — Issues and Evidence.
    Where the court submitted the issue of manslaughter, and the jury convicted defendant of that offense only, error, if] any, in. failing to submit that issue, in conformity with the evidence, was harmless.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§(715-720; Dee. Dig. § 340.]
    4. Criminal Law (§, 1129) — Appeal—Sufficiency op Assignment op Error.
    An assignment of error, on the ground that “the court erred in his charge to the jury in defining manslaughter,” is too general to require attention.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Clarence Alexander was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder, and, when tried was convicted of manslaughter. There was no error in overruling the application for a continuance, as it was wholly lacking in diligence.

The defendant placed upon the witness stand one Joe Nichols, and proved by him that deceased had an open knife in his hand and said “he was going to kill some son of a bitch on Eleven Row to-night.” On cross-examination the state asked him what defendant was doing and saying at that time, and, not eliciting desired responses, asked him if he did not testify to a certain state of facts before the grand jury, and, when he denied doing so, proved by a witness that he had so stated when testifying before the grand jury. The defendant objected, on the ground that, when the state inquired of the witness about matters not drawn out by him, the state made the witness its witness, and should not be allowed to impeach him. Article 815 of the Code of Criminal Procedure provides that “the rule that a party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner, except by proving the bad character of the witness.” See, also, Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904, and cases there cited. The answers of the witness to the questions propounded were of an injurious nature, and, if it should be held he became the state’s witness .on this phase of the case, this would present no error. We hardly think the witness became a state’s witness, however. He had testified for the defendant in regard to the origin of the difficulty, and the state was only cross-examining on this phase of the case.

Those grounds in the motion complaining of the action of the court in admitting certain testimony, to which no bills of exception were reserved, cannot be considered by us.

The court submitted the issue of manslaughter, and the jury convicted appellant of that offense only; consequently it could not be said, if the court failed to submit that issue in conformity with the evidence, any injury resulted to appellant, and in the motion it is not assigned in a way we could consider it — the ground reading: “The court erred in his charge to the jury in defining manslaughter.” This is too general to call our attention to any error in the charge, if error there be. However, we will add that the court’s charge was a fair submission of that issue.

The judgment is affirmed.  