Pena v. StatePena v. State
- Reporters:
- , ,
- Before:
- Davidson
Lead Opinion
Upon an indictment charging murder with malice, appellant *64was convicted of murder without malice and his punishmеnt assessed at five years in the penitentiary.
Aрpellant confessed that he killed deceased by shooting him with a gun, and offered evidence that he shot in self-defense against the actual attack of deceased and others.
The conclusion is expressed that the facts support the verdict, and appellant’s cоntrary contention is overruled.
The jury having found aрpellant guilty only of murder without malice, his contention that the trial court erred in submitting to the jury murder with malice is untenable. For appellant to havе been injured by an instruction upon murder with malice, the conviction of necessity would have beеn for that offense.
Appellant’s contentiоn as presented by his Bill of Exception #4 is answered by the well-established rule that in order to impeаch a witness by proof of the commission of other offenses, such offenses must be felonies or misdemeanors involving moral turpitude. Branch’s P. C., Sec. 167.
Other bills of exception appearing in the record have been examined and are overruled without discussion.
No reversible error appearing, the judgment is affirmed
Opinion approved by the court.
Rehearing
on appellant’s motion for rehearing
BEAUCHAMP, Judge.Appellant’s motion for rehearing is directed at the complaint thаt this court erred in not sustaining his Bill of Exception No. 4‘.
This bill сomplains because he was not permitted to ask the witness Rudolfo Martinez about his conduсt in living in adultery with a woman not his wife. In the state of the record we see no materiality whatsoevеr in this evidence. It is true that the jury might have viewed his testimony different, from what they did, and yet his testimony so far as material to anything, in the case was on uncontroverted matters. This witness heard a report of the fight outside while he was still on the inside of the saloon. He then testified that he did not see the fight while he wаs on the outside. Whether or not this is in conflict with anything *65that appellant testified to is not made clear. It would be rather an extreme construction for us to say that it is. From all of the evidence in thе case there is little to raise an issue cоntroverting appellant’s story of a confliсt between himself and others prior to the shooting. He does not tie himself to specific detаils and neither does the witness Martinez. The verdict of the jury finding appellant guilty of murder without malice tоo clearly indicates that the jury found in favor of appellant’s story about others attacking him.
In our view no reversible error was committed by the procedure complained of. Appellant’s motion for rehearing is overruled.