majority">Willson, Judge.

There is a fundamental error in the charge of the court with respect to the penalty for manslaughter. It states the minimum punishment to be confinement in the penitentiary for three years, when the law fixes it at two years. (Penal Code, art. 604.) The error is confessed by the Assistant *89Attorney General, and because of such error the conviction must be set aside. (Wilson v. The State, 14 Texas Ct. App., 527; Bostic v. The State, 22 Texas Ct. App., 136, and other cases therein cited.)

Several objections to the charge of the court upon murder in "the first and second degrees have been presented and urged by counsel for defendant, which we decline to consider and determine because not necessary to a disposition of the case, and because the law 'of murder has been eliminated from the case by the conviction of a lower grade of homicide.

With respect to the charge of the court upon the issue of the intoxication of the defendant, it follows substantially the language of the statute, and is not materially different from charges heretofore approved by this court. (Willson’s Texas Crim. Laws, secs. 92,94.) The statute referred to is awkwardly worded, •and its meaning in ;,ome respects is not very clear. As we construe it, it means that intoxication, or temporary insanity produced by the voluntary, recent use of ardent spirits will not excuse crime, or necessarily mitigate the penalty prescribed by law for the crime. But such state of mind may be proved, and when proved, may be considered by the jury, in mitigation of the prescribed punishment.

In a case where the charge is murder, such state of mind may be considered by the jury in determining the degree of the homicide, and also in mitigation of the penalty of any degree of homicide of which the defendant may be found guilty. Such we believe to be the meaning of the statute, though the language used does not directly and clearly apply the provision as to mitigation of the penalty to a case of homicide, nor to degrees of homicide other than murder in the first and- second degrees.

But the charge of the court, as far as it instructed upon the issue of intoxication, was correct. It was not excepted to, and no additional instruction was requested. In the motion for a new trial the attention of the court was called to this particular portion of the charge, but only in a general way, without specifying in what respect it was defective, except that it was not full enough. Conceding that the law upon the issue of intoxication was not fully charged, we are of the opinion, in view of the evidence, that the error is immaterial, not being of a character calculated to injure the rights of the defendant.

Evidence was offered by the State for the purpose of impeaching one of its own witnesses, who had testified favorably to the *90defendant, and such impeaching evidence was admitted over the objection of the defendant. It was not error, we think, to admit such testimony, as the witness had testified to some facts which were injurious to the State.1 But it was error to omit to instruct the jury that such testimony should not be considered by them for any other purpose than that of affecting the credibility of said witness. (Tyler v. The State, 13 Texas Ct. App., 205; Branch v. The State, 15 Texas Ct. App., 96; Washington v. The State, 17 Texas Ct. App., 197.)

Opinion delivered February 25, 1888.

Errors are complained of, by the defendant, in the charges upon manslaughter and self defense. There are' no exceptions to these charges in the record. When considered with reference^ to the evidence before us, we find no material error in said charges. In all respects, except those hereinbefore specified, the, charge is, in our opinion, sufficient and correct, and as favorable to the defendant as the facts would warrant.

Because of the error in the charge, with reference to the penalty for manslaughter, the judgment is reversed and the cause is remanded.

Reversed and remanded.

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