This conviction was for manslaughter, the punishment assessed being two years confinement in the penitentiary.
The serious question urged by appellant is that the facts are not sufficient to support the conviction for manslaughter; that it was a case purely of self-defense. Pretermitting a discussion of this question, the evidence is very cogent showing that appellant acted only in self-defense. There had been trouble between the parties in which the deceased was the aggressor. While these troubles were of a wordy nature, the evidence is that the deceased was the provoking party. After the last wordy altercation in which threats were made by deceased and intimations that he would renew the troubles, the parties separated and appellant armed himself in anticipation of further trouble. While walking along the side walk with a friend enroute to a wagon yard to get his team for the purpose of leaving town, appellant passed the door of a saloon in which was stationed the deceased, his son and a friend. There is some contradiction at this point as to who spoke first. The difficulty occurred and deceased was shot by appellant. The evidence is to the effect that deceased was making a demonstration to draw a pistol and a pistol was found upon his body. Appellant fired one other shot but not at the deceased. *Page 168 The State contended that appellant fired this shot at Ray Clark, son of deceased. Appellant's evidence is to the effect that the shot was fired into the saloon generally — not at anybody at all — but as a warning to those on the inside who were friends of the deceased not to make a further attack upon him. In this condition of the record and while appellant was upon the stand testifying in his own behalf, a bill of exceptions recites the following: That while appellant was being cross-examined by private counsel representing the State, and after appellant testified he did not shoot at Ray Clark, or see Ray Clark when he fired into the saloon, said Bell asked the appellant the following question: "You have been indicted for assault with attempt to murder in the Ray Clark case?" Appellant 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 under investigation. The objections being overruled, the witness was required to answer that he had been indicted by the grand jury for assault with intent to murder Ray Clark. In connection with this and as a part of the bill, it is recited that the stenographer's notes which are made a part of the qualification of the bill shows: "Q. What was your reason for shooting the second shot? A. To hold the front of the house, to keep any one 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." Then follows the objections of appellant. The Court said: "I don't think it is material." Defendant excepts. "Q. You claim that you did not shoot at Ray Clark at all? A. No sir, I didn't. Q. And what was your explanation?" Defendant objects. "A. I said I shot down through the house for the purpose, in order to hold the front of that house to keep anyone that might be in the house from coming out and shooting me down. I knew Dud Clark worked in that house, and of course, I expected him to come with both hands full of six-shooters." We are of opinion that this evidence was inadmissible. It was but the expression of the grand jury of what they thought of the case and of the shooting and appellant's connection with it. The indictment against appellant for the shooting at Ray Clark was a part and parcel of the transaction under investigation, if as a matter of fact he did shoot at him. It was denied by appellant and the finding of the grand jury as shown on the face of the bill of the indictment was used to contradict appellant on this issue. It was but their opinion and was not legitimate testimony for the purpose of impeachment. See Long v. State, 17 Texas Crim. App., 128; Shamburger v. State, 24 Texas Crim. App., 433; Taylor v. State, 50 Tex.Crim. Rep.; Moore v. State, 46 Tex.Crim. Rep.; De La Garza v. State, 61 S.W. Rep., 484. It will be noted that *Page 169 between the testimony of appellant and Ray Clark there is a sharp conflict as set out in the bill of exceptions. The testimony of Ray Clark or that for the State is to the effect that appellant fired the second shot into the house where Ray Clark was for the purpose of killing Ray Clark. Appellant's testimony is directly to the effect that he shot into the front of the house to prevent those whom he says were in conspiracy against his life from coming out to where he was to kill him. A conflict of evidence will not justify the introduction of testimony to impeach or sustain a witness. Long v. State, 17 Texas Crim. App., 128; Rushing v. State, 25 Texas Crim. App., 607; Britt v. State, 21 Texas Crim. App., 215; McGrath v. State, 35 Tex. Crim. 413; Harris v. State, 45 S.W. Rep., 714; Murphy v. State, 40 S.W. Rep., 978; Jacobs v. State, 42 Tex.Crim. Rep., 59 S.W. Rep., 1113. Here firing of the second shot was proved by the State and the appellant. There was no conflict upon this question, the conflict being in regard to the reason for firing the second shot. The indictment or the fact that it was returned by the grand jury against appellant charging him with assault with intent to murder Ray Clark, could have no bearing upon this issue and was thoroughly illegitimate. It was but the opinion of the grand jury found in the fact of the return of the bill that they believed appellant shot at Ray Clark and did not as he testified shoot to prevent Clark and others from coming out of the house and making an attack upon him. This act of the grand jury could not be used to settle or prove which theory was correct. As before stated, it would be but a conflict in the evidence and only upon the purpose for which appellant fired the shot. Under this state of case, under all the authorities, this evidence was not permissible either to sustain the State's evidence or to impeach appellant. Here the issue as to the shooting being admitted, it was a sharp contest between the testimony of Clark and appellant as to the purpose, and the act of the grand jury is thrown into the scale to determine that fact against appellant's testimony. They saw proper to believe Clark and thus found the indictment. It was but their conclusion of the effect of Clark's testimony as against appellant's. The authorities cited are, I think, in point and settle the matter for appellant and against the State's contention. Believing there was error in the admission of the testimony and of such a nature as to require a reversal of the judgment, I respectfully enter my dissent and believe the judgment ought to be reversed and the cause remanded for another trial. *Page 170