CHARLIE HANDY v. THE STATE.
No. 20001
Court of Criminal Appeals of Texas
Delivered December 7, 1938.
On Motion to Reinstate Appeal February 8, 1939.
136 Tex. Crim. 208
Believing that the case was properly disposed of on original submission, the motion for a rehearing is overruled.
The foregoing opiniоn of the Commission of Appeals has ben examined by the Judges of the Court of Criminal Appeals and approved by the Court.
The opinion states the case.
Adams & McAlister, of Nacogdoches, for appellant.
Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.
The recognizance recites that appellant has been convicted of an aggravated assault, whereas the conviction was for murder. In viеw of the fact that appellant is enlarged undеr a defective recognizance, this court is withоut jurisdiction.
The appeal is dismissed.
The foregoing opinion of the Commission оf Appeals has been examined by the Judges of thе Court of Criminal Appeals and approved by thе Court.
ON MOTION TO REINSTATE THE APPEAL.
CHRISTIAN, JUDGE.—The record having been perfected, the appeal is reinstated and the case сonsidered on its merits.
According to appellant‘s testimony, he was being attacked by deceasеd and two or three others when he fired the fatal shоt. In the charge the court submitted only the right of the aрpellant to defend himself against an attack upon the part of deceased. Appellant excepted to the charge on the ground thаt he should have been accorded the right to defend against a joint attack. The state‘s attorney before this court concedes that the exсeption was well taken and that error is presented. We are constrained to agree with him.
It is shown in bill of exception No. 10 that appellant was rеquired to testify on cross-examination, over his objection, that he had paid fines for fighting and shooting crаps. This testimony ought not to have been received, and, in the state of the record, its receipt constitutes reversible error. Neither the accused nor any other witness can be legally impeached by proof that he has been arrested for, charged with, or convicted of a misdemeanor, unless such misdemeanor involves moral turpitude. Jones v. State, 13 S. W. (2d) 845. The offеnses inquired about do not involve moral turpitude. Again, the state‘s attorney before this court concеdes that error is presented.
The judgment is reversed and the cause remanded.
The foregoing oрinion of the Commission of Appeals has been еxamined by the Judges of the Court of Criminal Appeals and approved by the Court.