Appellant's bill of exceptions 4 sets up that Miss Weaver, State witness, identified appellant as a customer upon whom she waited in a restaurant the afternoon preceding the homicide that night; that she testified that she paid close attention to him because he asked her what was their busiest time and what hour they closed. Cross-examined she said that she did not tell Stapleton the next morning that she paid particular attention to this man because he sat down and ate with his hat on which was unusual. Later, appellant put Stapleton on the stand and asked him if Miss Weaver did not tell him that she paid particular attention to said man "because he ate with his hat on at the table which was unusual," and that Stapleton replied that she did. It is further set out that on cross-examination of Stapleton the State asked him if he was sure concerning the statement Miss Weaver made, to which he said he was not. The State then asked him what she said to him in that conversation. The bill further recites that to this "Defendant objected, and the court overruled the objection," and witness said she told him she paid attention to the man because he asked her about what was their busiest time, etc. No reasons for or grounds of objection were stated. In his motion for rehearing appellant insists that we did not get the point, and that he asked Miss Weaver if she did not make the statement to Stapleton, — and prove by Stapleton that she did, — because she had said that she was struck by the color of the man's hair and eyebrows, and that proof that she said the man ate with his hat on would reflect on her opportunity to see and observe his hair and eyebrows. The argument is ingenious, but the record, as made by the bill, not only negatives the idea that any such reason was stated to the trial court as ground for the objection, — but the suggestion therein is very plain, viz.: that she did not tell the truth in her direct testimony when she said that her reason for close observation of said man was his question as to their busy time, etc., because forsooth she told Mr. Stapleton that her reason for such observance was because he ate with his hat on, this being unusual. There seems no room for debate over the proposition that appellant having brought out from Stapleton this impeaching declaration, the State had the right to the whole of that conversation *Page 289 bearing on the same subject, or to a statement in any other conversation with Stapleton in which Miss Weaver made to him statements in consonance with her original testimony. See Elbert Taylor v. State, 87 Tex.Crim. Rep.. The case of Red v. State, 39 Tex.Crim. Rep., was participated in by the writer. We are of opinion that it is not in point. The facts stated to Sutherland, in that case, by D.C. Rogers and elicited from Sutherland by the State on cross-examination, were not such as to be corroborative of the testimony of Rogers, which was in effect attacked by Sutherland's direct testimony. The rule stated in the opinion in that case, however, is applicable to this case and is as follows:
"It is competent to impeach a witness by showing that he made a statement to some one else, different from that testified to by him on the trial, as to some fact or facts in regard to the matter inquired about. When so impeached, it is competent to support such witness by proving that shortly after the occurrence, and before any inducement to falsify his testimony, he had made statements similar to those testified to by him on the trial."
The court's charge on malice aforethought is again attacked, it being urged that we did not get appellant's point in regard to this objection also. He now states the grounds of his objection to be that the court gave two definitions of malice aforethought in one paragraph, one incorrect, — the other correct, and that this confused the jury. Collins v. State, 299 S.W. Rep. 403; Copper v. State, 94 Tex.Crim. Rep., and Hayes v. State, 14 Texas Crim. App. 330, are cited. The language of the charge herein is identical with that quoted in the Collins case, supra, and there held sufficient. In the Hayes case, supra, only a part of the definition of malice aforethought was given in the charge, and we held it not enough, and the opinion states that "such other ingredient" should have been included as is therein quoted, — which is given as part of the definition of malice aforethought in the instant case. In the Copper case, supra, the charge was so worded as to make it easily misunderstood, and the verdict and judgment in that case were such as to lead to the conclusion that it was misunderstood. We are unable to agree with the contention under discussion.
In asking appellant while a witness if he was not then under indictment in certain felony cases, the specification of the injured party by name in each such case inquired about, is not to be commended but rather condemned. Same might in some cases be followed up and made the basis of a showing of harm and injury, but *Page 290 no such showing is here made. No details of any of said transactions further were inquired about.
Appellant admitted while a witness that a pistol shown him was his. It had been shown a State witness who swore that he saw the shooting, and declared that the pistol used by appellant looked just like the one now shown him. The State asked appellant while on the witness stand "Where were you when that gun jammed," and he said "4226 Tella St." There is a lengthy bill of exceptions to this. We do not find anything in the bill, or in the record as far as perceived, which otherwise suggests when or how the pistol was jammed or who jammed it, or that appellant was trying to use it in any way when it became jammed. To call for serious consideration the bill of exceptions itself must manifest the error complained of.
Mrs. Cornwell was permitted to testify to the condition of deceased immediately following his being shot, and to a conversation which partially indicated that he was not wholly conscious. We perceive no error in permitting the introduction of what deceased said as he lay struggling in death.
While we fully realize the gravity of the penalty inflicted by the jury in this case, the facts seem to fully warrant it. The other complaints made in the motion have each again been reviewed and are not deemed of sufficient importance to require that we write upon same.
The motion for rehearing will be overruled.
Overruled.