
    WARN v. STATE.
    (No. 11160.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    1. Homicide <&wkey;>295(2) — State’s evidence that defendant shot deceased day or so after defendant’s money had been stolen and defendant’s evidence that he shot only after deceased had shot at him raised no issue of killing in sudden passion.
    No issue of killing under influence of sudden passion arising from adequate cause was presented in murder prosecution such as to warrant instruction on manslaughter, under state’s evidence that defendant shot deceased a day or so after his money, left in care of deceased’s wife, had been stolen, or under defendant’s evidence that he pulled gun only when deceased shot at him.
    2. Homicide <S=s309( I) — Evidence that defendant deliberately shot deceased and defendant’s evidence that he shot only after deceased shot at him raised issues of unprovoked killing and justifiable homicide.
    State’s evidence that defendant shot deceased a day or so after his money, left in care of deceased’s wife, had been stolen and defendant’s evidence that he shot only after deceased shot at him presented only issues of unprovoked killing and justifiable homicide.
    3. Homicide &wkey;>309(3) — Manslaughter charge is unnecessary where only issues raised are unprovoked killing and justifiable homicide.
    Where only issues raised in murder prosecution are those of unprovoked killing and justifiable homicide, it is not necessary or advisable to give manslaughter charge to jury, as jury would only be misled thereby.
    4. Witnesses <§==5337(5) — Evidence of mere accusations or misconduct, without indictment, or of remote indictment or conviction is inadmissible.
    It is not permissible to introduce in evidence mere accusations or particular acts of misconduct for which defendant has not been indicted, and defendant may not be shown to have been indicted and convicted of crime of remote date.
    5. Witnesses &wkey;>337(5) — Testimony admissible for impeachment must constitute proof of crime, of date not too remote, involving moral turpitude.
    Testimony relative to previous misconduct of defendant is not properly admissible for purpose of laying foundation for impeachment, unless it amounts to proof of indictment for felony or misdemeanor involving moral turpitude, committed at date not too remote.
    6. Criminal law <&wkey;l 170/2(2) — Cross-examination of defendant as to former misconduct and trouble with- officers held not prejudicial, in view of answers.
    In prosecution for murder, permitting cross-examination of defendant as to previous homicide and trouble with deputy United States marshals, if erroneous, held not prejudicial, in view of defendant’s answers..
    Appeal from District Court, San Patricio County; T. M. Cox, Judge.
    W. A. Warn was convicted of murder, and he appeals.
    Affirmed.
    W. B. Moss, of Sinton, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, murder; punishment, life imprisonment in the state penitentiary.

Sufficient of the evidence to illustrate the law points discussed is as follows:

Appellant had been working for deceased, W. A. Farmer, at a construction camp. As his money accumulated he gave it to Mrs. Parmer, wife of deceased, to keep for him. She kept it in a trunk in a tent. Upon his calling for it, Mrs. Parmer found it was missing and told him the money had been stolen. He left the camp out of humor and at that time refused to receive balance owing him by the company. In a day or so he returned. Parmer paid him such balance at that time, and appellant then asked him what about the remainder, referring to the money claimed to have been lost. Mr. Parmer told him, “Mr. Warn, you know that money was stolen, and, if we find it, you are going to get every penny of it.” Appellant began cursing and said he would kill all of them; as he said it, he pulled his gun out, and Parmer said, “Mr. Warn, you don’t'want to kill anybody, you are too old a man,” and Mrs. Parmer said, “Oh, Mr. Warn, please don’t shoot.” He thereupon shot Parmer twice and shot at Mrs. Parmer about three times as she ran away, cursed her, telling her that he was going to kill her. This is, very briefly, the state’s evidence, as given by the wife of deceased.

The appellant’s version is entirely different. He explains that while working for deceased, deceased approached him and asked him to play cards with the negroes and employees of the construction camp and win their money and give him half of it. That they first used marked cards on him and broke him, which seemed to displease deceased. That he then marked cards and used on them and won a considerable sum, $122 of which he let Mrs. Parmer have upon her representation that she could loan it back to the negroes and make 25 per cent. His theory was' that Parmer and his wife had' stolen the money and refused to repay him. That he went to the tent of deceased and said “What about the $122?” and he said, “Now here, I told you — ‘bang.’ That is as far as he went. Well, as he pulled his gun, I pulled mine.” He further testified that deceased shot at him, whereupon he shot at his right shoulder to make him drop his gun. He said he did not intend to kill him, but was merely trying to make him drop his six-shooter.

The court charged on murder and self-defense. Complaint is made of the failure of the court to charge on manslaughter. The testimony, we think, fails to raise the issue of a killing under the immediate influence of sudden passion arising from- an adequate cause and seems to present two issues: (1) That of an unprovoked killing; and (2) that of justifiable homicide. These being the only issues, it is neither necessary nor advisable to give manslaughter in charge to the jury as its tendency would only be to mislead the jury. Homberg v. State, 12 Tex. App. 1; Pickens v. State, 86 Tex. Cr. R. 657, 218 S. W. 755; Williams v. State, 2 Tex. App. 271; Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 398.

By bill of exception No. 10 it is made to appear that appellant, on cross-examination, testified, in response to questions from the state as to alleged previous troubles, particularly that he had no trouble with deputy United States marshals and did not kill a man in Douisiana. The hill is, perhaps, not full enough for consideration. The surrounding facts and circumstances are not shown. The questions asked may have been proper questions and the answers merely not responsive. However, all the answers of the witness appeared to leave him in a favorable light before the jury, and no fact was testified to by him which, in our opinion, was prejudicial enough to justify a reversal.

The bill was qualified by the court with the statement that same was admitted for the purpose of laying a predicate for impeachment. It is not permissible to introduce in evidence mere accusations or particular acts of misconduct for which defendant has not been indicted, nor is it admissible to prove indictment or conviction for a crime of a remote date. McAfee v. State, 17 Tex. App. 139; Bowers v. State (Tex. Cr. App.) 71 S. W. 284. The testimony was not admissible for the purpose indicated by the court in his qualification unless it amounted to proof of indictment for a felony or misdemeanor involving moral turpitude of a date not too remote. Branch’s P. C. §§ 168, 169, and 170. We do not believe; however, that it presents a matter of such prejudicial character as would authorize a reversal. In no case was an accusation or conviction shown.

We have carefully examined all other bills of exception, and, finding no error in any of them, the judgment is 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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