The offense is manslaughter; punishment fixed at confinement in the penitentiary for a period of two years.
Appellant killed Ohman Irwin. The weapon used was a wooden stick about two and one-half feet long and two and one-half inches in diameter. There was evidence that in the manner used, it was calculated to produce death, and the blow struck with it broke the skull of the deceased and killed him. Appellant was a young man about eighteen years of age and weighed one hundred and twenty-five pounds.
We are not in accord with the position taken by the appellant that the character of the weapon used was such as would exclude the theory of murder. The grade of the offense was, under the evidence, a question of fact. The instrument was not per se a deadly weapon, but there was evidence describing it and the manner in which it was used is adequate to support the finding of the jury that it was used in an attempt to kill and that it was a deadly weapon. See Merka v. State, 82 Tex.Crim. Rep..
To one of the eye-witnesses, this question was propounded: "Tell the jury whether or not deceased had his hands open, down by his side, and whether or not he hit, clinched or struck the defendant."
We do not think the question was leading; nor does the bill show error. There was no motion to withdraw the answer.
Appellant complains of the receipt in evidence of a written statement signed I.D. Fuller. The only fact averred in the bill as a reason for its exclusion is that the statements therein "were not in contradiction of the testimony of the defendant while on the stand in this case." There may be many contingencies under which a written statement is admissible in evidence upon the trial, and on appeal, unless the contrary is shown, it must be assumed, in support of the court's ruling admitting the statement, that the conditions under which it was offered justified his action. It appears that Fuller was a witness for the appellant and described the transaction in which the deceased lost his life. On cross-examination it was drawn out that he had made a written statement soon after the tragedy, which was sworn to. It was exhibited to him by counsel and his signature to it identified. The written statement was afterwards introduced in evidence, doubtless for the purpose of impeaching the witness. In his charge, the court told the jury in appropriate language that the statement could be used for no purpose other than to enable them to pass on the credibility of the witness. Unless the record shows the contrary, the presumption that the court correctly ruled in admitting the statement must prevail.
Discerning no error, the judgment is affirmed.
Affirmed. *Page 454