
    WILSON v. STATE.
    (No. 9835.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    i: Witnesses <&wkey;405(2)— Cross-examination of defendant, charged with homicide, as to mistreatment of wife after testimony on direct examination that he had had no difficulty with 'her prior to her meeting deceased held proper.
    In prosecution for homicide, growing out of improper relations between deceased and defendant’s wife, where defendant testified that before his wife met deceased he had had no difficulty with wife, it was proper to cross-examine defendant as 'to mistreatment of wife as showing state of mind that deceased’s improper attentions would have likely produced, and hence was not impeachment on an immaterial matter.
    2. Criminal law &wkey;>I I70y2(2) — Cross-exami-. nation of defendant, charged with homicide, as to mistreatment of his wife held not revers- . ible error, where mistreatment was denied.
    Cross-examination of defendant, charged with homicide, as to his mistreatment of his wife to rebut direct testimony to the contrary held not reversible error, where matter was allowed to rest with defendant’s denial of mistreatment.
    
      Commissioners’ Decision.
    Appeal from District Court, Taylor County ; W. R. Ely, Judge.
    Sam Wilson was convicted of manslaughter, and he appeals.
    Affirmed.
    Roy L. Duke and Stinson, Coombes & Brooks, all of Abilene, for appellant.'
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is manslaughter, and the punishment is five years in the penitentiary.

The appellant’s complaints in his brief are shown by bills of exceptions 11, 12 and 13. The general complaint as contained in these bills is at the court’s action in permitting the state to prove by the appellant while a witness on cross-examination that' he had mistreated and abused his wife. We think this testimony was admissible under the peculiar facts of this case. The killing from the appellant’s theory grew out of the fact that the wife of the appellant had been having improper relations with the deceased. While testifying in his own behalf on direct examination, the appellant stated that before his wife met the deceased there had been no difficulty between appellant and her. In addition to this, his testimony showed that' he was extremely devoted to his wife. • We think this was a material matter in the case. If he was not devoted to her, and cared nothing for her, the jury might have concluded that he would not be enraged at her conduct in associating illicitly with the deceased. Appellant’s contention, therefore, that this testimony was impeaching him on an immaterial matter cannot be sustained. We think it was material to inquire as to the relations between himself and his wife as bearing on the state of mind that deceased’s attention to her would have likely produced; and, after appellant had testified that their relations had always been pleasant and agreeable, and after he had repeatedly stated his devotion for her, we think it was clearly permissible for the state to show, if it could, on cross-examination of the appellant-that his testimony in this regard was false, and, as a cogent circumstance showing this we think it was clear that it was proper to permit him to be asked concerning the mistreatment of her. Bibb v. State, 215 S. W. 312, 86 Tex. Cr. R. 112. In no event do we think this matter presents reversible error, and are confirmed in this belief by the fact that in every instance on cross-examination the appellant denied that he had ever mistreated his wife, and there the matter was allowed to rest.

The court’s qualification of bill 12 shows that the state’s counsel did not refer to the petition for divorce after the matter was called to the court’s attention; hence this pant of the bill shows no error.

We have examined the other complaints contained in appellant’s bills of exceptions, and believe they are without merit.

Finding no error in the record, the judgement is in all things affirmed.

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. 
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