
    JOHNSON v. STATE.
    (No. 10382.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.)
    1. Criminal law &wkey;>677—Withdrawal of testimony of witnesses, impeaching material state’s witness, held error.
    Where truth and veracity of material state’s Witness was impeached by defendant’s witnesses, withdrawal of their testimony held error.
    2. Homicide <&wkey;125—Defendant would not be guilty of unlawful homicide, if he shot deceased accidentally, while defending himself against another.
    If defendant shot deceased accidentally, while defending himself against an unlawful attack by another, such attack making it reasonably appear to defendant as to threaten him with loss of life or serious bodily injury, defendant would not be guilty of unlawful homicide.
    3. Homicide ¡&wkey;60—If defendant, while incapable of cool reflection, produced by act of another, intending to shoot such other accidentally killed deceased, he would be guilty only of manslaugter.
    If, by reason of attack or conduct by another, defendant was rendered incapable of cool reflection, and while in such condition, intending to shoot such other, and not in self-defense, accidentally killed deceased, he would be guilty only of manslaughter.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    C. A. Johnson was convicted of murder, and he appeals.
    Beversed and remanded.
    T. J. Cunningham and K. N. Grisham, both of Eastland, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Bobt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   LATTIMOBE, J.

Conviction in district court of Eastland county of murder; punishment, six years in the penitentiary.

It will not be necessary to discuss the facts, in view of our disposition of this case. It is sufficient to state that a witness by the name of Elliott was a most material witness for the state. The facts from the appellant’s standpoint show that he shot at said Elliott and accidentally killed deceased. Appellant claimed that his shooting at Elliott was in self-defense. After Elliott had testified for the state, appellant introduced five witnesses, each of whom testified that he knew Elliott’s general reputation for truth and veracity in the community in which he lived, and that it was bad. Thereafter, and upon motion of the state, the court withdrew from the jury the testimony of said witnesses, and instructed the jury not to consider said testimony. It appears, from the qualification of the court, appended to the bill of exceptions complaining of this matter, that after the appellant had testified, the state undertook to-show appellant’s bad reputation for truth and veracity, to which defense counsel objected. Upon this objection being made, the attorneys for the state moved the court to exclude the testimony of the witnesses above referred to, who had testified to the bad reputation of Elliott. The court sustained the state’s motion. The learned trial judge was in error in his action in this regard.

The court below refused special charges presenting, in substance, the proposition that, if appellant shot John Harris, deceased,, accidentally, while defending himself against an unlawful attack on the part of one Elliott, said attack being of such nature and character as to make it reasonably appear to the-appellant as to threaten him with loss of life or serious bodily injury, and if the jury believed that the shot which was fired at Elliott in self-defense by appellant struck and killed deceased, then appellant would not be-guilty of unlawful homicide. A charge should have been given presenting this theory of the case.

There is also an exception to the court’s-refusal to give a requested instruction, in substance, that if by reason of any attack made upon appellant by Elliott, or if by reason of other acts and conduct of said Elliott, there was produced in the mind of appellant such a degree of rage, anger, sudden resentment, or terror as to render it incapable-of cool reflection, and while in this condition appellant, intending to attack or shoot Elliott, and not in self-defense accidentally and without intention so to do, shot and killed Harris, he would be guilty of no more, than manslaughter. This charge presents a correct principle of law, and the refusal of same, or of the submission of this defensive-issue, was erroneous.

For the errors mentioned, the judgment must be reversed, and the cause remanded;. and it is so ordered. 
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