Upon more mature consideration we have concluded that we were wrong in holding that the trial court correctly refused to allow appellant to prove his general good reputation for truth and veracity by three witnesses named in bill of exceptions No. 4. The record shows that the state, in making out its case in chief, introduced three eye-witnesses to the homicide and rested. Among other witnesses appellant testified in his own behalf and swore that he killed deceased in self-defense. He said deceased had threatened him, and that when he went to the house where the homicide occurred that night, deceased was on a settee on the porch and turned toward him in such manner as caused him to believe deceased was going to kill him and he shot deceased. On cross-examination by the state he repeated that this was the reason he shot, and was thereupon asked if he did not shoot deceased about going with his (appellant's) wife and affirmed that he did not. Asked if he had not made a signed statement to the county attorney in reference to the killing, he admitted he had. Asked if he had not said to the county attorney that deceased had been going with his wife about a year, appellant denied it. Asked if he had not told the county attorney that Dennis McGee told him that deceased stayed with appellant's wife at McGee's house some weeks before the killing, appellant said he did not remember. Asked if he told the county attorney that deceased was sitting on a settee and turned toward him, he asserted that he had.
Thereafter in its rebuttal the state introduced the written statement or confession made by appellant to the county attorney. In same appeared the statements that deceased had been going with appellant's wife about a year; that Dennis McGee told appellant that deceased had stayed with his wife at McGee's home some weeks before; that deceased was sitting on a settee when appellant first saw him on the occasion of the homicide, and that he shot deceased because he was going with appellant's wife, that deceased was doing nothing when shot save sitting on the settee. After the introduction of this confession by the state appellant offered three witnesses by whom he expected to prove that his general reputation for *Page 343 truth and veracity in the community was good. This was rejected and is the action of the court complained of. The bill is qualified by the learned trial judge who states that in his opinion there was no necessary conflict between the testimony of appellant as given on the stand, and his confession which was introduced in rebuttal, save as to his reason for shooting deceased — but if there was such difference, the conflicts were but mere contradictions and same were not impeaching; also that the confession was admissible as original testimony if same had been offered in chief, and was in fact admitted as original testimony and not on any theory of impeachment. As part of his qualification the court cited Ellington v. State, 48 Tex.Crim. Rep., and White v. State, 42 Tex. Crim. 575. We are not able to apply the principle in either of said cases as authority for the court's rejection of this testimony. It must be borne in mind that one may be impeached in various ways and sustained in as many; and that one who is impeached by proof of contradictory statements made by him, may be sustained by proof of other similar statements. Moore v. State, 31 Tex.Crim. Rep., and authorities cited in Branch's Ann. P. C., Sec. 181; also by proof of his good reputation for truth and veracity. Dixon v. State, 15 Texas Crim. App. 272; Anderson v. State, 34 Tex.Crim. Rep., and authorities cited by Mr. Branch in Sec. 184 of his Annotated P. C.
In the White case, supra, the facts disclose that a defense witness named Rich swore that the first shot fired by appellant killed deceased; that the state then put on other witnesses who swore that Rich told them that the second shot killed deceased. Appellant then sought to introduce witnesses to whom Rich had said that the first shot was the fatal one, but the trial court rejected this last offered testimony. We held this action erroneous. This was manifestly correct. The defense had the right to support the credibility of its witness Rich, who was impeached by proof of statements contradictory to those made by him on the witness stand, by proof of statements at other times and places similar to those given by him on witness stand.
The opinion in the White case also correctly held that the state having shown as part of its case in chief that the accused told parties that he killed the deceased with the second shot, and that defendant having thereafter taken the stand in his own behalf and testified that he killed deceased with his *Page 344 first shot, he could not support himself by proof by other parties that he told them that he killed deceased by his first shot. The clear distinction is that in such case the state offers no contradictory statements to those made by appellant, but proves as original testimony his declarations and statements, and that he can not thereafter put his character in evidence by testifying in his behalf to facts contradictory to those offered by the state. There is a vast difference between the principle involved in the two rulings of the court in the White case just mentioned. The Ellington case, supra, is illustrative of the same point. The state there introduced against the accused as part of its case in chief, statements made by him with reference to the crime. He took the stand and swore to the contrary and then offered witnesses to prove that they had heard him make statements in consonance with his testimony. Denied the testimony of these witnesses, he brought the question here for review, and we upheld the trial court. Discussing the authorities cited by appellant in that case, however, we said:
"All of these cases are authority for the proposition that where appellant is put on the witness stand, and the state has impeached such witness by showing that he made a different statement to that testified to by him upon the point in issue, that it is competent for appellant in rebuttal to show that he made a similar statement to that testified to by him about the time of the transaction, in order to corroborate the witness."
Not only was appellant in the instant case impeached by the contents of his written confession as to the reason and cause which led to the killing, but also as to other matters which he was specifically and pointedly asked about on his cross-examination and denied having said. The state had not offered the confession as part of its case in chief, nor as original testimony, but waited until it had thus cross-examined appellant and then offered his former statements which were directly contradictory to his testimony. This is not the same principle as in the White and Ellington cases, but is altogether different. Appellant was impeached. The state did prove contradictory statements made by him, and under all the authorities he had the right to sustain himself either by proof of similar statements or by proving his general good reputation in the community for truth and veracity.
A careful review of the facts does not lead us to conclude
*Page 345 that the testimony of appellant or that of any other witness was sufficient to justify the court in instructing the jury that appellant should be acquitted if he killed deceased because he was taken in adultery with appellant's wife. Said wife testified for appellant and did not claim to have been in flagrante delicto with deceased. Appellant in his testimony did not assert that he believed them so engaged. None of the other witnesses who were on the porch where the killing took place gave testimony supporting such proposition. While the testimony seems to strongly support the theory of manslaughter, we find nothing therein leading us to conclude that the court should have submitted justifiable homicide on the theory that the wife of appellant and deceased were engaged in criminal intercourse with each other, or that appellant so believed at the time he fired the fatal shot.
For the exclusion of the testimony above mentioned which we conclude to have been error, appellant's motion for rehearing will be granted, our judgment of affirmance will be set aside, and the judgment now reversed and the cause remanded.
Reversed and remanded.