
    HICKS v. STATE.
    (No. 12465.)
    Court of Criminal Appeals of Texas.
    April 10, 1929.
    Earle Adams, Jr., of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Murder is the offense; punishment fixed at confinement in the penitentiary for a period of five years.

The appellant shot and killed Edwin De Walt. He testified and attempted to justify the homicide upon the ground of self-defense based upon apparent danger. The court submitted to the jury the issues arising from the evidence in a charge of which no complaint is made.

There is one bill of exceptions taken to the action of the court in overruling the objection to the reading in the presence of the jury of a written statement made by the witness Allen, who seems to have been a witness for the state. In qualifying the bill, the court states that he caused an investigation to be made in the absence of the jury and dé-termined that there was a predicate shown for the impeachment of the witness Allen, The jury was recalled, and the writing mentioned was read in the form of a question to the witness; that this was done without objection and the proceeding acquiesced in by counsel who appeared for the appellant at the trial. On appeal, the appellant was represented by a different attorney. That circumstances may arise in the trial of a ease warranting the state to impeach its witnesses by proof of contradictory statements is a principle recognized by this court in'many opinions. See Somerville v. State, 6 Tex. App. 433; Williford v. State, 36 Tex. Cr. R. 424, 37 S. W. 761; Floyd v. State, 29 Tex. App. 356, 16 S. W. 188; and many other precedents collated by Mr. Branch in his Ann. Tex. P. C. § 164, subds. 4 and 7.

The evidence that the appellant killed the deceased by shooting him several times is not in conflict. The defensive theory presented was rejected by the jury.

The judgment is affirmed.  