The offense is murder, and the punishment is five years in the penitentiary.
The state's testimony as well as the appellant's confession *Page 340 shows that the deceased had been going with the wife of the appellant about a year and that appellant had told him and his wife that he wanted them to quit going together and that on the night of the killing, appellant's wife left home and went over to Jim Guy's house and that after she was gone, appellant followed her and on reaching Guy's home found the deceased, appellant's wife, Jim Guy, Jack Johnson and Sam Jones on the porch, and he spoke a few words to other members of the party and proceeded to shoot the deceased twice, killing him.
By bills one and three appellant complains at the court's action in submitting the issue of murder to the jury, it being appellant's contention that the evidence did not raise the issue of murder. We cannot agree with appellant's contention in this regard. Not only did the testimony of the state's witnesses raise the issue of murder, but in our opinion the confession of the appellant also clearly raised this issue.
By bill No. 2, appellant complains at the argument of the district attorney wherein he stated that the evidence showed that the wife of the defendant was a common prostitute and the defendant knew it and had known it for a year. The confession of appellant introduced in evidence shows that he stated therein that deceased had been going with his wife about a year and that he told him and his wife that he wanted them to quit going together, that it might cause trouble. In addition to this there was evidence from other witnesses to the effect that the reputation of the wife of the appellant for chastity was bad. Under this condition of the record no reversible error is shown by, the bill.
Appellant complains at the court's action in refusing to permit him to prove by three witnesses that the general reputation of the appellant for truth and veracity was good. A careful examination of the record as well as the qualification of the trial court to the bill raising this question convinces us that the testimony offered by the state tending to discredit the appellant was admissible as original testimony for the purpose of showing his guilt and that it does not come within the rule that authorizes the appellant to make proof of his general reputation for truth and veracity. As correctly contended by the state, the fact that a defendant testifies in a case and his testimony is contradicted by other witnesses does not bring in issue the general reputation of the witness for truth and veracity. Ellington v. State, 48 Tex. Crim. 392. White *Page 341 v. State, 42 Tex.Crim. Rep.. Hill v. State, 106 S.W. 145. Rushing v. State, 8 S.W. 807. Rutherford v. State, 67 S.W. 101. McCree v. State, 170 S.W. 280.
Appellant complains also because the court refused to grant him a new trial on the ground of newly discovered evidence. The affidavit of several people in Lee County was attached to the motion for a new trial, which affidavit showed that the deceased bore the reputation of a violent and dangerous man. The qualification to this bill shows that on the hearing of the motion, the appellant admitted in open court that he knew all the time that the deceased had lived in Lee County and knew that the deceased moved to Falls County three or four years ago from Lee County; and that he had heard that deceased had been turned out of jail in Lee County, and that defendant had made no effort to obtain testimony regarding deceased's reputation in Lee County until after his conviction. The court further certifies that counsel could have ascertained from defendant where deceased came from; and further certifies that it was in evidence on the hearing of the motion for new trial that no effort was made prior to the trial to obtain testimony from Lee County. Under this condition of the record, the court was not in error in refusing a new trial.
Complaint is also made at the court's action in refusing appellant's special charge which sought to submit to the jury the issue that if appellant had been informed of the illicit connection of his wife with the deceased and that at the time of the shooting he came upon his wife and deceased in such circumstances as it appeared to him that they were engaging in illicit intercourse or were about to engage in illicit intercourse and that under those circumstances he fired the fatal shot he would be justified. The evidence does not raise the issue sought to be presented. We think it clear from this record viewing all the surrounding circumstances that there was no issue raised by the testimony to the effect that appellant believed or could have reasonably believed at the time of the killing that deceased and his wife were engaging in or about to engage in illicit intercourse. On the contrary the facts are undisputed that he found them in company with some two or three other negroes sitting on the porch and doing nothing that would indicate that they were engaged in or about to engage in illicit intercourse.
Finding no error in the record, the judgment is in all things affirmed.
Affirmed. *Page 342
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.