
    JACKSON v. STATE.
    (No. 10420.)
    (Court of Criminal Appeals of Texas.
    March 23, 1927.
    1. Assault and battery <@=>92— Homicide <@=>282 —Evidence held to take assault to murder case to jury and sustain conviction of aggravated assault.
    In trial for assault to murder, evidence held sufficient to take case to jury, and sustain conviction of aggravated assault.
    2. Criminal law <@=^555 — Jury need not accept any witness’ testimony, especially if manifestly interested.
    Jury do not have to accept testimony of any witness, especially of one whose interest in case is manifest.
    3. Assault and battery <@=>56 — Unlawful assault with deadly weapon is “aggravated assault.”
    Unlawful assault with a deadly Weapon, not in self-defense, is “aggravated assault.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Aggravated Assault.]
    4. Witnesses <@=>345(4) — Witness’ indictment for felony may be proven to affect his credibility, though acquitted as state’s attorney knew.
    Witness may have fact that he has been indicted for felony proven* against him as affecting his reputation as witness, though he was acquitted of such offense, as state’s attorney knew before asking question.
    
      5. Criminal law <§=s>723( I)— Characterization of defense as cold blooded and hard hearted by counsel, who had cried while injured party testified, held not so prejudicial as to require reversal, notwithstanding direction to disregard remarks.
    • Characterization of defense, in trial for assault to murder, as cold blooded and hard heart-ed, in closing argument by private counsel assisting state, who had sobbed and cried before jury while injured party detailed circumstances, held not so prejudicial as to require reversal of conviction, notwithstanding trial court’s direction not to consider such remarks.
    6. Criminal law 1701/2(5) — Cross-examination of peace officer, tried for assault to murder, as to whether he notified ranger officers when informed that two dangerous men were on train, held not obviously hurtful.
    In trial of peace officer for assault to murder, cross-examination of defendant as to whether he notified ranger officers when informed that there were two apparently dangerous men on train held not so obviously hurtful as to call for review, whatever prosecutor’s motive or purpose in asking question or stating purpose thereof to court was.
    7. Witnesses <$=^402 — Recall of state’s witness to fix his nearness to injured party when defendant shot held not improper as intended to impeach other state’s witnesses who testified as to their relative positions.
    In trial of peace officer for assault to murder, state’s recall of. 'witness to fix his nearness to injured party when defendant shot held not improper as intended to impeach other state’s witnesses, who testified that injured party was ahead of witness, who swore that he was in front.
    Appeal from District Court, Yal Verde County; Joseph, Jones, Judge.
    Joe Jackson was convicted of aggravated assault, and he appeals.
    Affirmed.
    Walter E. Jones, of Del Rio, for appellant. Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   LATTIMORE, J.

Conviction of aggravated assault; punishment, fine of $100 and 60 days in the county jail.

Appellant was charged in the district court of Val Verde cdunty with assault to murder, and upon trial was convicted of aggravated assault. He shot one D. with a .45 single action Colt pistol. The only question before the jury trying him was whether the shooting was accidental or otherwise. It is shown that, following their arrest for beating their way on a train, D. and J. were walking just ahead of appellant, who was an officer of the city of Del Rio. He had fired one shot, as he claimed, to stop D., who fled when the officer appeared. The two young men had been riding on the blind baggáge of the train, but stopped at Del Rio, and appellant had been notified of their presence, and was looking for them when he saw them get off the blind baggage. When appellant fired his pistol above D.’s head, the latter stopped and came back, and the two men were being marched in front of appellant, they having their hands above their heads, and he having his pistol in his hand. Appellant claimed to have stumped his toe, and that his pistol went off and shot D. in the back. Appellant made no claim of fear or apprehension, or that either of the young men had made any demonstration. One state witness, who was looking at the parties when the shot was fired, said they were standing still, and that appellant pointed his pistol at D. and fired. Another said that appellant did not stumble just before the pistol was fired. The trial court told the jury in his charge that, in determining the guilt of appellant, the circumstances should be viewed from his standpoint ; that no act done by accident could be an offense; and that, if the shooting resulted from appellant stumping his toe, or if the jury had a reasonable doubt on this point, he should be acquitted.

In the able brief of appellant it is insisted that the facts do not justify the verdict of guilty, and that an instruction for a verdict of acquittal should have been given. We are not in accord with this view. The jury do not have to accept the testimony of any witness, especially of one whose interest in the case is manifest. The circumstances detailed by the witnesses for the state were entirely sufficient to carry the cafee to the jury and to support the conclusion that the shooting was the result of purpose or inexcusable carelessness. An unlawful assault with a deadly weapon not in self-defense is aggravated assault. Hamilton v. State, 60 Tex. Or. R. 258, 131 S. W. 1127.

It seems so well settled by the uniform decisions of this court, following the common-law rule, as not to need discussion, that one who has been indicted for a felony and becomes a witness upon a trial may have this fact proven against him as affecting, if the jury so take it, his reputation as a witness, even though he has been acquitted of such offense. Appellant makes a persuasive argument against the validity of this holding, ánd seeks to have us here declare it erroneous for the state to ask appellant if he had not been indicted for murder in Pecos county, upon the proposition that the state’s attorney knew before he asked the question that appellant had been acquitted. We must decline to overrule the number of decisions heretofore rendered by this court and our predecessors adhering to the doctrine of aR lowing such testimony. The instruction given the jury' concerning their use of this' testimony was in accord with precedents, and proper. .

It is stated in bill of exceptions No. 1 that private counsel assisting the state sobbed and cried before the jury while the injured party detailed the circumstances of the shooting; also that upon objection counsel refrained from further so doing; further, that in making the closing argument for the state the same counsel referred to the incident, and characterized the defense as cold blooded and hard hearted, to which remarks appellant further objected. The objection was sustained, and the trial court directed the jury not to consider said remarks. Appellant’s counsel here insists that the remarks were so prejudicial as that they could not be effaced or their effect taken away by the instruction. The point is eloquently and forcibly argued in appellant’s brief, but without convincing us that what ■occurred in the first instance may not have been but an exhibition by the private prosecutor of his possession to an unusual extent of that quality of mercy which is not strained; and that the gentle dew which dropped from his eyes, accompanied by sobs, may not have been the irresistible overflow from an unusually sympathetic heart. To be sure, if counsel for the defense believed these to be “tears of ingenious sorrow,” or akin to those of the “paid mourner at a stranger’s funeral, shedding crocodile tears,” and that the cause of his- client would be unfairly affected by some spurious touch of a but seeming tender contagion, he only did right in objecting to having his conduct referred to as cold blooded and hard hearted by the gentleman whose sympathetic exhibition he had objected to. However, this court espouses neither side of the lachrymose dispute, and, viewing the entire matter from what we think must have been the standpoint of the jury, are of opinion that nothing therein influenced the verdict.

The record shows that appellant testified that he was called to come and get two safe crackers off the train. Bill No. 3 sets out that on cross-examination appellant was asked if, when he got the information that there were two safe- crackers on the train who looked like dangerous men, he notified the ranger captain or sergeant of the rangers. Appellant objected, stating what he thought to be the wrongful purpose of the question. Private prosecutor denied asking the question for the purpose stated, and said that, as he understood the defense, it was based on the excited condition of appellant’s ■mind, due to the fact that, when he went to the place, he felt that he was going' to have, to arrest dangerous men, and that there were other peace officers in the house with him at the time. We are not able to say what was the motive or purpose of the prosécutor in asking the question, or in making the statement to the court of what his purpose was, but the matter does not appear to us of any obviously hurtful character such as would call for review at our hands.

We do not think the state’s purpose in recalling the witness Jennett was to impeach any of its other witnesses. Other of the state witnesses had testified that D. was ahead of Jennett. The latter had already sworn that ho was in front of D. when the shot was fired. The state apparently recalled Jennett to have him fix the nearness of the two boys 'to each other when appellant shot.

Rinding no error in the record, the judgment will be affirmed. 
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