Denmark v. State , 95 Tex. Crim. 413 ( 1923 )

The offense is assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of two years.

Martin Grant received a gunshot wound from a gun in the hands of the appellant. It occurred at a gathering or dance at the home of Grant. From the State's testimony, the inference of malice was deducible. Appellant in his testimony advanced the theory of an accidental discharge of the gun.

The witness Bertha Reed testified to matters material to the defense. By questions propounded to her the State's counsel endeavored to show that she was living with the appellant in the same house and as his wife. She did not answer the questions. The bill reveals no error. Her relations with him were admissible to show her animus. A case in point is Crist v. State, 21 Texas Crim. App. 366. See also Branch's Ann. Tex. Penal Code, Sec. 163, p. 94.

While Grant was on the stand and after he had testified giving his version of the alleged assault, he was asked upon cross-examination if he had not on the same night that he was injured told the sheriff, Mr. Reeves, that it was an accident. To this he gave an affirmative answer. He was later recalled and permitted to state that he had told sheriff Reeves that appellant claimed that it was an accident, but that in fact it was not an accident. Reeves gave testimony, in substance, to the same effect. The appellant having put in issue the declarations of Grant in his conversation with Reeves, apparently it was permissible for the State, either in re-direct examinaton or rebuttal, to permit witness to give in full his version of the conversation. The witness having been attacked by a contradictory statement, he was privileged to explain it. Ball v. State, 36 S.W. Rep., 448; Streight v. State, 62 Tex.Crim. Rep.; Branch's Ann. Tex. P.C., Sec. 93 and 94. The witness Reeves testified to the conversation with Grant in which Grant told him that appellant was claiming the shooting to be an accident, but that, in fact, it was not an accident. The appellant having elicited from Grant on cross-examination a part of the conversation with the sheriff, it was clearly permissible for the State, under art. 811 of the C.C.P. to have detailed the whole of the conversation upon the same subject. As the matter appears in the record, we are of the opinion that no reversible error was committed in receiving Grant's version of the conversation with the sheriff.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. October 17, 1923.