Conviction for assault with intent to murder; punishment, one year in the penitentiary.
We have concluded upon more mature consideration that our former opinion was in error, and same is withdrawn.
It appears that a Mr. Barge had sold an automobile, upon which he retained a lien to secure the unpaid part of the purchase money. Legal proceedings had been instituted to foreclose this lien. The car seems to have come into the possession of Willis Murphy. On the night of the alleged assault, according to Mr. Barge, Willis and Earl Murphy, accompanied by appellant, entered the office of Barge. He said that the shot guns, which were presently displayed, were concealed when they came into his place. We set out the substance of his testimony. Almost immediately upon entering, Willis Murphy made a demand upon witness to know what he was going to do with the car referred to. Appellant and Earl produced their shot guns, and Willis proceeded to strike Barge on the head with a pistol, causing blood to flow into the eyes of Barge, temporarily rendering him unable to see. While in this condition he was hit on the hand with a shot gun, according to his belief, and also on the head. Willis Murphy then shot Barge with said pistol. Barge said from their actions and continued assault he thought they were going to kill him. They continued striking him with the butt of a shot gun after he fell to the floor. He feigned death and they left him.
Appellant testified that he had been out with the Murphy brothers all during the day. When they came to town that night he said he put a shot gun in the car and Earl Murphy put another in the car. They then came to town and ate supper at a restaurant. After finishing their meal he said they went up to Barge’s place where Willis Murphy and witness got out. *344He said they walked down the street a short way and then turned and came back, he, appellant, being a few feet behind Murphy. When they got back to Mr. Barge’s place they went in. Appellant said he stayed near the door, and that an argument ensued between Barge and Murphy over the car. Appellant said Barge put one arm down by his side, and with the other arm made a lunge at Murphy “like that, and caught him.” Appellant then pulled Barge back and Barge jerked loose, and Willis hit Barge. Appellant said he heard the gun fire. He further testified that Earl Murphy was in the car at that time, but came in presently with a shot gun in his hand. Appellant testified twice that he had no knowledge that any offense was going to be committed when they went to the Barge place. He said “I knew nothing about it. * * * I didn’t have any knowledge at that time of any act that was going to be committed on Barge or any other person. * * * I had no knowledge that any offense was going to be committed when we went there.”
The court submitted the case to the jury on the theory of principals. There are four bills of exception. Bill 1 sets out that while appellant was a witness and had testified that he and the Murphy brothers ate supper at a restaurant, — he was asked the following question: “After that what did you do?” Appellant started to tell what one of his companions said. Objection to this was sustained. Manifestly any narration of what Willis Murphy said would not be responsive to the question asked. The bill contains some things admissible and some not, which being true affords us no reason or excuse for holding the ruling herein complained of erroneous. Holt v. State, 98 Texas Crim. Rep., 248; Dixon v. State, 91 Texas Crim. Rep., 217; Sapp v. State, 87 Texas Crim. Rep., 606; Middleton v. State, 86 Texas Crim. Rep., 307.
Bill 2 presents the following: While a witness appellant was asked: “Was there ever at any time between you and Willis Murphy and Earl Murphy any statement made about going to do anybody harm or any person harm on that occasion?” The question was very general, and was open to the objection made and sustained, that the answer legitimately called for would have been self-serving, whether said statement had been made by appellant himself, or one of those alleged to have been acting with him as principals in the assault. The expected answer set out in the bill was, in part only, responsive. That part averring that witness would have answered that no acts or conduct of the Murphys indicated that they or either of them intended to assault Barge, was not only not responsive but also *345expressed only the opinion of the witness as to the acts and conduct of said Murphys.
Bill 3 sets out that after answering in the negative as to whether various things said by Mr. Barge as having been done and said by appellant and his companions when they entered his place, — appellant was asked by State’s counsel: “You would not tell this jury if you did?” to which objection was made because it was an indirect impeachment of appellant as a witness, and cast an aspersion upon him without legal sanction. The court overruled the objection, and the bill sets out that appellant was compelled to answer. The bill might be held defective for not setting out what answer was made by appellant, but we note from the statement of facts that he answered “I would,- if there was anything to it.” We do not think the objection sound.
If there was anything objectionable in the charge on principals, exceptions to which appear in bill of exception 4, it would be because same obviously placed upon the State a greater burden than the law imposed, — of which appellant can not be heard to complain.
Finding no reversible error in the record, the judgment will be affirmed.
Affirmed.