Appellant was tried for the murder of his wife, and was convicted of murder of the second degree, with penalty assessed at seven years in the penitentiary Of the many questions so ably discussed in the brief of his counsel, we select out'for examination those which we consider of most importance.
It was not error for the court to admit the evidence objected to of former difficulties which had occurred between the parties, and of previous threats made by the defendant against decea sed. Antecedent menaces, former grudges and quarrels are admissible to show the state of mind and malice of the accused at the time of the offense. (Carr v. The State, 41 Texas, 543; Anderson v. the State, 15 Texas Ct. App., 447.)
Three theories are presented by the evidence in this case: First, an intentional killing. Second, an accidental killing; and third, homicide by negligence of the second degree. In his charge to the jury, the trial judge submitted the law applicable to the first two theories, but did not submit any instructions upon the third. 0
Homicide by negligence of the second degree is that which occurs in the performance of an. unlawful act. (Penal Code, art. 578.) “To constitute this offense, there must be an apparent danger of causing the death of the person killed, or some other.” (Penal Code, art. 581.) “To bring the offense within the definition of homicide by negligence of the first or second degree, there must be no apparent intention to kill, and the homicide must be the consequence of the act done or attempted to be done.” (Penal Code, arts. 584, 585.)
Defendant had just returned from a church festival, to which he had carried a pistol on or about his person, which was an unlawful act. In coming back from the festival, he got into a quarrel with Alf Parker, Jr., during which he drew and held the pistol in his hand, not so much, perhaps, with a view of shooting Alf with it (for it appears there was nothing to prevent his doing so had he so desired), as to intimidate him. When Alf Parker, Sr.„ came out, defendant was cursing and still had the pistol in his hand. This witness says: “I spoke to him, telling him that was no way to be acting, and to stop it. Defendant kept on cursing and replied to me that he would burn my shirt tail off if I did not go back into the house. Defendant then rode to a tree near by and hitched his horse and started to his own house, which was about twenty-five or thirty steps from *692my-house, and his wife came to the door and said to him: 1 Chubb, come into the house and don’t be out there fussing with Grandpa.’ Defendant said ‘ I will raise a smoke around you all,’ and as he said this the pistol fired.” This witness, in his testimony given at the examining trial, held recently after the homicide, testified that “he did not know whether Chubb Howard shot Easter intentionally or not. * * * * Easter grabbed at the pistol Chubb had in his hand, and said, £ Chubb, you let Grandpa alone! ’ About that time the pistol went off.”
Deceased’s dying declarations, made to three different parties, were introduced in evidence and in each she stated she was accidently shot. In one of the statements so made, she said: “I heard Chubb and Grandpa quarreling out side (the house), and went to the door and pulled it slightly open, and told Chubb to let Grandpa alone. And Chubb says £ well, as soon as I put up my horse.’ And just as he turned, I grabbed the pistol and. jerked it back over his shoulder, and it went off and shot me, and if I die, I don’t want Chubb punished.”
We think it fair to presume from the evidence that if defendant had intended killing the two parties with whom he quarreled, he could have done so, or at all events he could have shot at either of them before the inteference of his wife, since there-was nothing to prevent. He did not fire at either. Whilst he had had previous difficulties with his wife, they appear to have been on good terms that night, and defendant’s conduct after he-found she was shot showed his grief and tended strongly to evidence an unintentional and accidental shooting.
With regard to negligent homicide, these facts, we think, warranted and required a charge of the law upon that subject. In waving his pistol and cursing, and endeavoring to intimidate young Parker in the first instance, and his father in the second, the defendant was unquestionably engaged in an unlawful act. That such conduct might and did produce apparent danger of causing death, if the pistol did go off, is equally apparent. That there was no apparent intention on his part to kill is a conclusion which might have been arrived at by the jury from the other facts, had it been submitted to them. That the homicide was the consequence of his illegal act in having and waving his pistol is most clear.
We are of opinion that the evidence called loudly for a charge-upon negligent homicide of the second degree, and that it was error in the court to ignore and fail to instruct upon this phase *693of the law. (Robbins v. The State, 9 Texas Ct. App., 667; Id., 671; Aiken v. The State, 10 Texas Ct. App., 610; Clark v. The State, 19 Texas Ct. App., 495; McConnell v. The State, 13 Texas Ct. App., 390; Curtis v. The State, 22 Texas Ct. App , 227.)
Opinion delivered June 20, 1888.It was attempted upon the part of the defense to impeach the principal State’s witness by showing that he had given contradictory testimony on the examining trial. Upon this matter the court instructed the jury as follows, viz: “A witness may be impeached by proving that he has sworn differently from what he does before you. This is not done for the purpose of proving that such witness has sworn falsely before you, but to enable you the better to judge of the credibility and worthiness of belief of such witness.” We are of opinion the instruction is erroneous. “A witness called by the opposing party can be disoredited by proving that on a former occasion he made a statement inconsistent with his statement on the trial.” (Whart. on Crim. Evid., 8 ed., sec. 482; 1 Greenleaf on Evid., 13 ed., sec. 462.) “The legitimate object of the-' proposed proof is to discredit the witness.”
Mr. Webster defines “discredit” to mean “to refuse credence to; not to accept as true; to disbelieve.” If this definition be correct, then the object of the impeaching or contradictory statements is to make the jury disbelieve and not accept as true, and to refuse to give credence to the testimony he has given before them. In other words, its object is to disprove and falsify the testimony of the witness as sworn to before them. Such evidence goes to both the discredit of the witness and the falsity of the testimony which is contradicted. And it is for the jury to say whether such contradictory statements do or do not absolutely disprove and falsify his evidence given on the trial.
For errors in the charge of the court, above pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.