Appellant was tried in the District Court of Limestone County on a charge of murder, was convicted of manslaughter, and his punishment fixed at five years in the penitentiary. This is the second appeal of this case See 85 Tex.Crim. Rep., 209 S.W. Rep., 743.
Deceased and appellant married sisters, and from the testimony of several witnesses, it appears that they had been hostile toward each other for some time, but that on the night of the homicide, appellant and his family came to a public dance and ice-cream supper at the home of deceased. Some time after midnight, deceased and a son of appellant, seem to have engaged in some kind of wordy altercation out in the yard, at some stage of which the appellant hastily approached deceased, and struck him on the head with the breast-yoke of a wagon, which blow caused the death of deceased some time during the day following. The evidence presents sharply conflicting stories, as same comes from the witnesses for the State or the appellant, but these matters of conflict have been settled by the jury, and the record contains ample facts upon which to predicate this conviction.
The wife of deceased was a witness upon a former trial of the case, but has since died. The State was permitted, over objection, to introduce her testimony on the instant trial, as given upon said former hearing. The objection to this matter, as presented by appellant's bill of exceptions, has so often been before this Court, and by it analyzed, and the authorities collated and reviewed, that any further discussion now would be repetition. We adhere to the rule that such evidence, when properly proven up, is admissible. Dowd v. State, 52 Tex. Crim. 563; Nixon v. State, 53 Tex.Crim. Rep.; 109 S.W.R., 931; Porch v. State, 51 Tex.Crim. Rep., 99 S.W. Rep., 1122; Robertson v. State, 63 Tex.Crim. Rep., 142 S.W. Rep., 533; Sweat v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 554. Objection was made to the introduction of said testimony, because the original note-books used by the stenographer in taking down the testimony, were lost. The stenographer testified that her notes were correctly transcribed, and that the narrative statement of the said deceased witness, which was offered in evidence in the instant case, was correct and true. It was also shown that the *Page 533 statement of facts was agreed upon as correct, upon the appeal from the former conviction had at said former trial. There is no prescribed method or rule for reproducing testimony given at a former hearing, and it may be given by the stenographer, or other person who heard it, and are able to affirm the correctness of the reproduction offered. Pace v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 132; Roquemore v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 1120; Cornelius v. State, 54 Tex. Crim. 173, 122 S.W. Rep., 251.
An application for continuance was made by appellant. The absent witnesses were Mrs. Alma Williams, Ura Bailey, and Clarence Johnson. The two latter appeared during the trial, and testified in the case. This was a second application, and we think no diligence is shown to secure the attendance of Mrs. Alma Williams; and that it also appears that the same facts stated as expectant from her, were given in evidence by several other witnesses.
Error is based on the refusal of the trial court to permit appellant to prove by Jim Walts, that the wife of deceased, Mrs. Jordan, whose testimony had been reproduced by the State, had made a statement to him the next morning after the homicide, contradictory of her testimony as given on the former trial, and as reproduced on the instant hearing. It appears that this testimony was refused, because no predicate was laid for impeachment, and because the testimony of said Walts, as presented on the former trial in the shape of an affidavit, contained no such testimony as appears in the statement now sought to be elicited from him, impeaching the testimony of Mrs. Jordan. The appellant wished to prove by Walts that on the morning after the homicide, Mrs. Jordan told him that she had taken a pistol off the body of her husband shortly after he was struck by appellant the fatal blow. The testimony was rejected for the reason stated. This testimony should have been admitted. Lyles v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 592; Hamblin v. State, 34 Tex.Crim. Rep., 30 S.W. Rep., 1005. However, we are of opinion that its rejection in the instant case was harmless error. The only purpose of such testimony would have been to contradict or impeach Mrs. Jordan. Looking to her testimony, as given on this trial, we find that she stated positively that she did not remove a pistol from her husband's bosom the night he was killed, and did not take any from his body; that her husband had no pistol on that night; that he owned no pistol. She further stated that John Mitchell found a pistol the next morning outside their fence, but it did not belong to her husband. Looking to the testimony of said witness Walts, it will be observed that he swore positively to seeing deceased with a pistol shortly before the fatal blow was struck, and directly afterward he saw that same pistol in possession of Mrs. Jordan, and that he saw it in her hands the next morning. From the testimony of Felton Carroll and Evie Sanders, it also appears that they testified *Page 534 fully for appellant, stating that Mrs. Jordan had a pistol that night, which came off the body of her husband, and which they were directed by her to take from his body. In other words, the record discloses that appellant introduced numerous witnesses, whose testimony was wholly contradictory to that of Mrs. Jordan, and put her in the attitude of being impeached as completely as would the added statement of said witness Walts that she told him that she took the pistol from the body of her husband. We think the error harmless for the further reason that if Mrs. Jordan had stated to the witness Walts that she had taken said pistol from the body of her husband, it would have afforded no justification for the act of appellant in striking deceased, as appellant did not claim himself, nor did any one for him claim that appellant saw any pistol in possession of deceased before striking him. Appellant stated, that deceased and the son of appellant, were quarreling, and that deceased called the boy a "long-legged son-of-a-bitch," and stated that he was going to kill him. Appellant said that when he called his son this name, and made this threat, deceased threw his hand back to his hip, and he thought that he had a pistol; that he was excited, and struck in defense of his boy. The trial court fully charged on appellant's right to act in defense of his son, whether the danger was real or only apparent, and no exceptions were taken to the court's charge. So, in view of the fact that appellant had the full benefit of abundant testimony contradictory of Mrs. Jordan's testimony, regarding said pistol, and that at least half a dozen witnesses for him testified that deceased had a pistol on the occasion in question, we conclude that no possible harm could have resulted from the error of the trial court in refusing said impeaching testimony of said witness Jim Walts.
Having disposed of the various questions raised in this bill, and finding no reversible error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. June 23, 1920.