
    SWANNEY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.)
    1. Jury (§ 70) — Venire—Return.
    On September 4th the court set a homicide case for trial on September 14th, and on the same day ordered a venire of 50 men drawn, making the writ returnable on September 11th, and on that date the sheriff filed the writ without making return, and on the 12th the district attorney filed a motion asking permission to make the return on the writ and for an order requiring him to do so, which motion was granted, and the return was made and accused served with a copy thereof on the 12th. Held, that no error was shown.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 310-330; Dec. Dig. § 70.]
    2. Homicide (§ 173) — Admission of Evidence.
    Where the first and second persons to go to decedent after he was killed, and, in fact, every one who testified for the state testified that they saw no weapon on or about decedent when they went to him, evidence by certain other witnesses that when they went to the field where decedent lay about 30 minutes and 2 hours, respectively, after the killing, they saw no weapon on him, was not inadmissible on the ground that the evidence showed that other people had been to the place of the killing before such witnesses; that fact only going to the weight of their evidence.
    [Ed. Note.' — Eor other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    3. Witnesses (§ 387) — Cross-Examination.
    Where, in a prosecution for murder of accused’s wife’s father, accused’s wife testified for him that she told accused for the first time on the morning of the killing that decedent, her father, was the father of her child, the state could ask her on cross-examination whether she had not told accused that fact before the day of the killing, and told others that she told accused thereof a month before the killing.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1228-1232; Doc. Dig. § 887.]
    
      4. Witnesses (§ 268) — Cross-Examination —Cross-Examination of Accused’s Wife.
    The usual questions may be asked on the cross-examination of an accused’s wife as to all matters pertinent to her direct examination as in all other cases.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 981-948; Dec. Dig. § 268.]
    Appeal from District Court, Hopkins County; R. L. Porter, Judge.
    Shelby Swanney was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Sheppard and D. Thornton, both of Sulphur Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder. When tried, he was convicted of manslaughter, and his punishment assessed at two years in the penitentiary.

It appears that the court on the 4th of September set this ease for trial on September 14, 1911, and on the 4th ordered a venire of 50 men drawn, and made the writ returnable on September 11th. The sheriff on the 11th filed the writ with the clerk without having made a return thereon. On the 12th the district attorney filed a motion asking permission for the sheriff to make his return on the writ, and for an order requiring him to do so. The court granted the motion, and the sheriff made his return, and the defendant was served with a copy thereof on that day. This presents no error.

In his next two bills of exceptions appellant complains that the court permitted J. D. Wooley and W. B. Latta to testify that they went to the field where deceased lay, and that they saw no weapon of any character on or about deceased. Wooley testified that it was about 30 minutes after deceased was killed before he arrived at the place where the body was found, and Latta that it was two hours or more after the killing took place before he arrived. He was the justice of the peace, and testified he found no weapon of any kind. Appellant’s objections were that the evidence showed that other people had been to the scene of the homicide prior to the arrival of these two witnesses. The state placed on the stand Lee Walden, who testified he was the first person to go to the deceased, and that he saw no weapon, and by G. H. Vick showed that he was the second person at the body of his father, and he saw no weapon. In fact, every person who testified for the state says deceased had no weapon. The court did not err in overruling the objections. The objection might go to its weight, but not to its admissibility.

Appellant placed his wife on the witness stand, who testified at the instance of appellant that she gave birth to a child on the 6th of January, and that her husband (defendant) was not the father of her baby; that on the morning of the killing she had talked to appellant, and had talked to him just before he went to the field where her father was at work; and that she at that time told him that her father (deceased) was the father of her child. The bill shows that the following questions were asked her by the defendant, and she made the answers given: “Q. Did you see Shelby Swanney there that morning? A. Yes, sir. Q. Did you talk with him? A. Yes, sir. Q. Did you talk with him about this baby and about who was its father? -A. Yes, sir. Q. Did you .tell him who was its father? A. Yes, sir. Q. How long before the killing was it that you told him? A. It was that morning. Q. About how long before the killing? A. Why, it wasn’t long, just after I told him he went down there. Q. Who did you tell him was the father of this child? A. My father. Q. Turner Vick? A. Yes, sir. Q. 1-Ie is the man that was killed? A. Yes, sir. Q. Was that the truth? A. Yes, sir.” On cross-examination the state was permitted to ask her if she had not told the defendant prior to the day of the killing that deceased was the father of the baby, and she answered she had not, but said that that morning just before the killing was the first time she had told him. She was then asked if on the day of the killing she had not told Jesse Butler that she had informed the defendant that her father was the father of her baby a month prior to the killing, which she denied, and she further denied making a statement in writing to the effect: “The first time I told defendant or any one else except my father that my father was the one who got me in the family way was the first Tuesday in April, 1911,” about a month before the killing. The state proved by Jesse Butler that the witness had made such statement to him, and the state introduced the written statement to prove that she had so stated. All of this was objected to by defendant on the ground that it was a cross-examination about a matter not inquired about by him on direct examination. Counsel in his argument frankly stated to this court that his object in proving by defendant’s wife that she told defendant about it on that morning was to reduce the offense, if any, to manslaughter, and by this system of examination create in the minds of the jury that this was the first time she had told her husband. If the question and answer would create that impression in the minds of the jury, and was elicited for that purpose, certainly it was permissible for the state to show its falsity, and show that at another time and place she had made a different statement in regard to the same matter. The information sought by defendant was how long before the killing was it that she told her husband, and the state by its questions sought to elicit the same information. The defendant desired to prove that he had killed deceased the first time he met him after receiving such information. The state desired to prove that such was not the fact, and it all related to the same matter, and there was no error in permitting the cross-examination.

This court has held that a wife may be cross-examined as to all matters testified to by her on her direct examination, and ask Questions tending to show the accuracy of her direct testimony and may apply the usual tests of cross-examination as to all matters germane and pertinent to her direct examination. Dobbs v. State, 54 Tex. Cr. R. 554, 113 S. W. 923; Exon v. State, 33 Tex. Cr. R. 468, 26 S. W. 1088; Creamer v. State, 34 Tex. 173; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Merritt v. State, 40 Tex. Cr. R. 359, 50 S. W. 384; Hampton v. State, 45 Tex. 154; Shelton v. State, 34 Tex. 662; Magruder v. State, 35 Tex. Cr. R. 214, 33 S. W. 233.

This disposes of all the bills of exceptions in the record, and the grounds in the motion criticising the charge of the court are not well founded. The court in an admirable charge presented every phase of the case, and correctly applied the law to the evidence adduced.

The judgment is affirmed.  