Appellant was convicted of manslaughter, and his punishment assessed at two years confinement in the penitentiary.
The only bill of exceptions in the record presents the following: While defendant was upon the stand as a witness in his own behalf, and while he was being cross-examined by R.R. Bell, private counsel *Page 166 for the State, and after the defendant had testified that he did not shoot at Ray Clark, or see Ray Clark when he fired into the saloon, said State's counsel asked the defendant the following question: "You have been indicted for assault with intent to murder in the Ray Clark case?" To this the defendant's counsel objected, because the record is the best evidence, and because an indictment found by the grand jury is no evidence of guilt, and because it is an effort to get before the jury the opinion of the grand jury in reference to the transaction now being investigated. The objections being overruled by the court, appellant answered that he had been indicted by the grand jury for assault with intent to murder Ray Clark. The following transcript from the stenographer's notes is attached to this bill and made a part of the judge's qualifications thereto: "Cross-examination of Sam Davis by R.R. Bell: Q. What was your reason for shooting the second shot? A. To hold the front of that house, to keep anyone from coming out of that house and from shooting me down. Q. You have been indicted for assault to murder in the Ray Clark case? A. Yes, sir, I guess I have, I am under bond. The Court: I don't think it is material. Q. You claim that you didn't shoot at Ray Clark at all? A. No, sir, I didn't. Q. And what was your explanation? A. I said I shot down through the house for the purpose, in order to hold the front of that house to keep any one that might be in the house from coming out and shooting me down. I knew that Dud Clark worked in that house, and of course, I expected him to come with both hands full of six-shooters." This testimony was admissible. Appellant had stated he shot into the house to keep any one from coming out of same to assault him. Now to show the motive for making said statement, the State called upon appellant to prove that he was indicted for shooting at Ray Clark, and that that is the reason he swore he did not shoot at Ray Clark but merely shot into the house to keep some one from coming out of the house; that he knew Dud Clark worked in the house and expected him to come out with both hands full of six-shooters. Where a party gives testimony, it is always germane, proper and legitimate to show a motive for said statement, and certainly if appellant is indicted for assault to murder upon Ray Clark, this would give him a strong motive for swearing that he did not shoot at Ray Clark, and the fact that at the time he gave such testimony he was indicted, becomes a pertinent inquiry and goes to that extent to discredit the accuracy of his statement when he says he did not shoot at Clark. This is not a case where there is a bare controversy in the testimony but the defense is trying in this testimony to make out a perfect defense and to show a legitimate and lawful purpose, in all of his acts which were part and parcel of the res gestae of the transaction. Now when he states he did not shoot at Clark, it very pertinently suggests itself to any one's mind that he might be preparing a defense *Page 167 to the indictment for assault with intent to murder said Clark, or at least the fact of being indicted suggested that this might be his motive for so swearing and, therefore, goes to reflect upon the credibility of the statement and general credibility of the witness. In this connection the court charged the jury as follows: "You are instructed that the defendant cannot be convicted in this case for shooting at or threatening to shoot at any other person than the deceased. He is on trial alone for the killing of Lowe Clark." To this extent this was clearly a limitation of the purpose for which the testimony complained of in above copied bill was admitted. Appellant does not complain of the lack of proper limitation of the testimony but the objection that appellant makes is that it was an indirect way of eliciting the opinion of the grand jury in reference to a material part of the evidence upon this trial. We do not think there was any error in the admission of the testimony. This is especially so in the light of the verdict in this case which was for two years, the minimum punishment for manslaughter. The evidence clearly supports the verdict. The jury having given appellant the minimum punishment, we cannot see how the testimony even if erroneous, could have injured appellant.
Finding no error in the record, the judgment is in all things affirmed.
Affirmed.
[Rehearing denied November 3, 1909. — Reporter.]