
    GRADINGTON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.)
    1. Criminal Law (§ 814) — Instructions— Circumstantial Evidence.
    On a trial for burglary, committed by shooting into a house with intent to injure a person therein, where the prosecuting witness positively identified accused as the person who did the shooting, testifying that she saw him at the time, no charge on circumstantial evi•dence was necessary, since such charge is required only when the evidence to sustain the conviction is wholly circumstantial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-19S5, 1987; Dec. Dig. § 814.]
    2. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Showing Error.
    On appeal from a conviction of burglary, committed by shooting into a house with intent to injure a woman who had previously lived with and been “kept” by accused, a bill of exceptions, stating that a question asked the prosecuting witness as to why accused wanted her to live with him, and whether he wanted her to sleep with him, was leading, failed to show that a leading question was not permissible.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Burglary (§ 36) — Evidence —Admissibility.
    On a trial for burglary, committed by shooting into a house with intent to injure a woman who had previously lived with and been “kept” by accused, a question asked the prosecuting witness as to why accused wanted her to live with him, and whether he wanted her to sleep with him, was neither irrelevant nor incompetent.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. § 90; Dec. Dig. § 36.]
    4. Criminal Law (§ 371) — Evidence—Prior Offenses — Motive.
    On a trial for burglary, committed by shooting into a house with intent to injure a woman who had previously lived with and been “kept” by accused, but who had left him, evidence of prior assaults on such woman by accused was admissible to show motive.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.]
    5. Criminal Law (§ 673) — Instructions— Limiting- Effect of Evidence of Other Offenses.
    Where evidence of other offenses was proper to show motive, no charge limiting its effect was necessary, since motive is a part of the proof to establish the main offense.
    [Ed. Note. — For 'other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    6. Criminal La.w (§ 783) — Instructions— Limiting Effect of Evidence of Other Offenses.
    Where evidence of other offenses was properly admitted to show motive, if an instruction limiting its effect was necessary, an instruction that accused was on trial on the charge contained in the indictment only, and that if any evidence had been introduced as to other offenses, the jury could not convict him in any event of such offenses, sufficiently limited its effect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1734, 1735, 1872-1876; Dec. Dig. § 783.]
    7. Witnesses (§ 395) — Corroboration of Impeached Witness.
    On a trial for burglary, committed by shooting into a house, where accused, in order to impeach the prosecuting witness, proved statements by her that she did not know who did the shooting, it was proper to permit the state to corroborate her by proof that early the next morning after the shooting she told a constable who investigated the matter that accused did the shooting.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    8. Criminal -Law (§§ 763, 764) — Instructions — Weight of Evidence.
    Where contradictory statements by the prosecuting witness were proved by accused for purposes of impeaphment, and the state was then permitted to corroborate such witness by proof of statements similar to her testimony, the failure to charge as to the effect of this supporting testimony was not error, as such a charge would have been on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    9. Criminal Law (§ 1184) — Appeai^Cor-rection of Verdict.
    Where the indictment, charge, verdict, and judgment clearly showed that accused was convicted of burglary, but he was sentenced for assault with intent to murder, the sentence will be corrected on appeal to show that it was for burglary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.]
    Appeal from District Court, Bastrop County ; Ed. R. Sinks, Judge.
    Lisba Gradington was convicted of burglary, and he appeals.
    Modified and 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
    
   PRENDERGAST, J.

Appellant was convicted of burglary and his penalty fixed at two years in the penitentiary.

The evidence is amply sufficient to show that for some two or three years prior to July 29, 1911, the date on which the offense is charged to have been committed, appellant lived with and probably “kept” Patsy Foster, the injured party; that some time before the commission of the offense she quit him and went back to her mother’s; that, it seems, another negro man was paying her attention, and had gone with her and brought1 her back, from some gathering the night the offense is charged; that soon after her return from this party with the other negro man the appellant shot into the house of her mother, some of the shot striking, her and showing clearly from the circumstances his intention to injure her. The evidence is amply sufficient to sustain the verdict.

The testimony of Patsy Foster, the injured party, showed, and she testified positively, that it was the appellant, who shot into the house and shot her, and that she saw him at the time and immediately thereafter, when he ran away from the house. No chhrge on circumstantial evidence was therefore necessary. It is only when the evidence' to sustain a conviction is wholly circumstantial that such a charge is required.

Appellant’s bill that a question by the prosecuting officer to Patsy Foster, wherein she was asked what appellant’s idea was in wanting her to live with him, and “did he want her to sleep with him,” was leading, clearly does not show that a leading question, even if this was, was not permissible. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. Neither was such ’proof in this ease irrelevant or incompetent.

Antecedent menaces, quarrels, assaults and batteries, and grudges may always be shown to prove motive. Sullivan v. State, 31 Tex. Cr. R. 488, 20 S. W. 927, 37 Am. St. Rep. 826. In this case the court, therefore, did not commit any error in permitting the state to prove the previous assaults and assaults and batteries committed by appellant upon said Patsy Foster, in order to show motive; and no charge was necessary limiting the effect of such evidence, because motive is a part of the proof to establish the main offense. But if it was necessary to limit such proof, the court did so in this case properly by charging in a separate paragraph this: “The defendant is on trial on the charge contained in the indictment only. You are charged that, if any evidence has been introduced as to any other offense, you cannot convict him in any event of such offense, if any.” Millican v. State, 63 Tex. Cr. R. 452, 140 S. W. 1136, and authorities there cited.

Patsy Foster, as stated above, testified positively that appellant shot into the house and shot her at the time the offense is charged; that she saw him, identified him, and saw him run away immediately after he shot. In order to impeach her, appellant asked her if she did not state to various persons, naming them, the next day and later, in effect, that she did not know who shot her, but she thought it was appellant. She denied making such statements. Appellant then put witnesses on who testified she did make such statements. The state was then properly permitted to corroborate her by proving by the constable that early the next morning after the shooting the night before he investigated the matter, and that Patsy Foster then and there told him that it whs appellant who shot into the house and shot her that night. Section 874, Branch’s Crim. Law, where a large number of the cases are collated. - No charge was asked as to the effect of this supporting testimony. Any charge on that subject would have been on the weight of the evidence and specially called attention to the testimony of the complaining witness and this testimony in support of it. No reversible error was committed, under the circumstances, in not charging thereon.

The appellant has called our attention to the fact, in what he calls his supplemental assignments of error, filed long after the adjournment of the court, that the sentence of the appellant, instead of being for burglary, wit,h which he was charged and convicted, and the judgment of conviction and verdict so showed, was for assault with intent to murder. This, of course, was an error, but as the indictment, charge, verdict, and judgment thereon clearly show that he was convicted for burglary, instead of assault with intent to kill, under the statute the final sentence will be set aside, and this court will and does now here direct and require that the sentence shall be so made and changed as to show that he was and is sentenced for burglary, instead of an assault with intent to murder.

With this correction, there being no reversible error presented, the judgment is affirmed.  