Opinion
No. 12465.
Delivered April 10, 1929.
Murder — Impeaching State's Witness — Proper Predicate Shown — Not Error.
Where a proper predicate was shown there was no error in permitting the state to read a written statement by witness Allen for the purpose of impeaching him. That circumstances may arise in the trial of a case warranting the state to impeach its witnesses by proof of contradictory statements, is a principle recognized by this Court in many opinions. See Somerville v. State, 6 Tex.Crim. App. 433, and other cases cited.
Appeal from the Criminal District Court No. 2 of Harris County. Tried below before the Hon. Langston G. King, Judge.
Appeal from a conviction of murder, penalty five years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Murder is the offense; punishment fixed at confinement in the penitentiary for a period of five years.
The appellant shot and killed Edwin DeWalt. He testified and attempted to justify the homicide upon the ground of self-defense based upon apparent danger. The court submitted to the jury the issues arising from the evidence in a charge of which no complaint is made.
There is one bill of exceptions taken to the action of the court in overruling the objection to the reading in the presence of the jury of a written statement made by the witness Allen, who seems to have been a witness for the State. In qualifying the bill the court states that he caused an investigation to be made in the absence of the jury and determined that there was a predicate shown for the impeachment of the witness Allen. The jury was recalled and the writing mentioned was read in the form of a question to the witness; that this was done without objection and the proceeding acquiesced in by counsel who appeared for the appellant at the trial. On appeal the appellant was represented by a different attorney. That circumstances may arise in the trial of a case warranting the State to impeach its witnesses by proof of contradictory statements is a principle recognized by this court in many opinions. See Somerville v. State, 6 Tex.Crim. App. 433; Williford v. State, 36 Tex.Crim. Rep.; Floyd v. State, 29 Tex.Crim. App. 356; and many other precedents collated by Mr. Branch in his Ann. Tex. P. C., Sec. 154, Subds. 4 and 7.
The evidence that the appellant killed the deceased by shooting him several times is not in conflict. The defensive theory presented was rejected by the jury.
The judgment is affirmed.
Affirmed.