
    Elizabeth E. McCARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 28310.
    Court of Criminal Appeals of Texas.
    June 30, 1956.
    Schlesinger, Goodstein & S.emaan, A. A. Semaan,. San Antonio, by Louis W. Schlesinger and. A.,A. Semaan, San Antonio, for appellant. . , ...
    Hubert ‘ W. Green, Jr.,:' Criminal Dist.' Atty., Anthony. Nicholas, Jr., Asst. Criminal Dist., Atty,, San Antonjo-,. and Leon B., Douglas,., State’s Atty., .Austin,, for the State. _ • ¡ ...
   DICE, Commissioner;

Appellant was convicted of. murder with maiice and her punishment assessed at twenty years’ confinement, in the penitentiary ‘

The homicide occurred on the evening óf April 3, • 1954⅜ - at 'a place known : as" the Welcóme Ihn,: which was -operated by the deceased.

According, to the state’s witnesses, appellant entered the place, and, after ordering a beer from the deceased, produced a pistol from her purse and ‘stated to the witness Tom' B. Bromley: “See this gun here. I have got a bullet in it for Mack.” (meaning appellant’s husband). After the deceased'told appellant to put the gun up, appellant stated to her: “I have been wanting to get .even with you. * * * I have been wanting to get even with you for seven or' eight months arid I will just let you have it.,” and then fired the fatal shot which killed the deceased.

•As.-a witriess in. her own-behalf, appellant admitted- shooting the-, deceased but testified, in‘ mitigation thereof,- to certain relations existing betwéen her -husband and-the deceased.

Appellant testified that she and her husband were married in 1941 and began having difficulties in 1950 after he started going to the deceased’s place of business; that she protested his going there because the place had a bad reputation; that he. continued to go to the place arid on occasions would take trips with the deceased; that, when she protested his attentions to the deceased, her husband would curse, abuse and beat her; that many times she asked the deceased to ’quit going with her husband 'and the deceased told1 her it didn’t' make any difference to her and that she was going to keep on gaing.with him. . •

Appellant 'further testified that' ‘she did not go to the place with 'the intention of shooting the deceased and that, after she had entered, the deceased made some sarcastic remark about “why I had to go out checking on my husband;” and- then “it jus.t seemed like .everything that ever had been done arid everything that she had ever said to me and'that he had ever done to me' and every beating 1 had got and every cursing I had ever got, — everything just come all over me-all at once and I just, — I took the gun out -of my ■■ pocke;t- and. was goiqg around the table and I.don’t know whether-I was saying anything or not, and I was clicking the gun at her and I thought maybe I could scare her’too and the' gun went off.”

- By Bill.-of- Exception .No. .19 appellant,complains-of- the -refusal of the-court to declare a ttristrial following certain statements made ¡'by- the' court in; ruling upon appellant's objection -to questions propounded to-the state’s "witness- Pete Gilbert -on re-direct- examination. .

The record reflects that the witness was, an-, eye-witness to the .shooting and, in his direct- testimony, related his. version of the killing, which bore upon the, issue of malice in the case. On cross-examination, appellant’s'counsel-sought to impeach" the witness' by risking him about' a statement’ he had made to the police on the night'of: the''k'illing.' ,:On re-diréct examination,- alter state’s counsel had inquired of the witness as to whether he had made a certain statement to the police and appellant’s counsel objected on the ground that it was an attempt on the part of counsel to bolster his own witness, the following transpired:

..“Mr. ' Nicholas (For The State). Counsel has gone ipto it and I am entitled to go into the whole statement.
'“The Court.' I understand that He is only impeaching him' in regard to immaterial matters to begin with.
. * . * * . * * *
..“The Court. I will withdraw that remark, Gentlemen of the Jury.. Only a - portion of the testimony is impeaching, —the immaterial portion of it at least.
“Mr. Semaan. I want to object to the Court comménting on the evidence in the presence of the jury and ask for a mistrial for that rea'stm.
“The Court. Motion overruled.
“Mr. Semaan. Note our exception for the reason stated.”

The remark of the court referred to testimony of the witness which had been previously admitted in evidence. The remark- to 'the -effect that it- was- -immaterial was a comment upon the weight of the evidence, in violation of Art. 707, V.A.C.C.P., and was prejudicial. Branch’s P.C., 2nd Edition, Sec. 291, p. 234. Sackheim v. State, 94 Tex.Cr.R. 43, 249 S.W. 867.

For the error pointed out, the judgment is reversed and the cause remanded

Opinion approved by the Court.

MORRISON, Presiding Judge

(concur-ririg).

I concur in the reversal of this conviction and further observe that, as I see it, the trial.court fell into serious error when he refused to reopen the case and permit the appellant to offer the testimony of a witness to a material issue. The witness satisfactorily explained his absence from court when he was first called, and no undue delay would have been occasioned by allowing him to testify.  