Pena v. State , 157 Tex. Crim. 63 ( 1952 )

DAVIDSON, Judge.

Upon an indictment charging murder with malice, appellant was convicted of murder without malice and his punishment assessed at five years in the penitentiary.

Appellant 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 contrary contention is overruled.

The jury having found appellant 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 have been injured by an instruction upon murder with malice, the conviction of necessity would have been for that offense.

Appellant’s contention as presented by his Bill of Exception #4 is answered by the well-established rule that in order to impeach 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.