*1 160 every hypothesis except and exclude other reasonable guilt.
that of his by appellant We considered the authorities cited support of his contention that is insufficient and evidence many find the facts in the re cases cited diiferent material spects present State, to the facts in the case. In Dodd v. 149 144 278, Rep. 819, George Texas Cr. 193 2d S.W. 110, upon Texas Cr. 2d state relied tracks possessed alone liquor. to show that the accused In Crutch Rep. field v. 569, 855, 2d whisky was found on a mountain where there man were trails. judgment is affirmed.
Opinion approved by the Court.
Roy Isace Hunter v. State. 30,626. April No. 1959. Rehearing May 27,
Motion for Overruled 1959.
WOODLEY, Judge, dissented.
Reynold Gardner, Amarillo, M. appellant. Scott, Jr., County Attorney, Vega, John L. Doug- and Leon las, Attorney, Austin, State’s for the state. Judge. WOODLEY, punish- intoxicated; driving while is for
The conviction jail fine of ment, days $350. *2 court appeal filed in this has been the A motion to dismiss copy a case because county attorney prosecuted the
by who the the of the clerk filed with statement of facts has been of the statement file the by required The failure trial court as law. V.A.C.C.P., 4, 759a, by Sec. duplicate required Art. of facts in as appeal. Paulos the jurisdiction of this court of does not divest motion 341, State, Rep. 2d 928. 248 S.W. Texas Cr. 157 is therefore overruled. alleged appellant the undisputed that on the date It was County, highway upon public a Oldham
drove his automobile in- of his issue only was on the in the and the conflict evidence toxication. ap- stopped and arrested highway patrolman who describing and his actions
pellant, his manner of after opinion appellant was appearance, that in his testified intoxicating liquor. An- of on such occasion under the influence testified appellant his arrest after other officer who observed of intoxi- influence opinion appellant under the that in his was cating liquor. behalf, direct testified on
Appellant, his as witness in own rabbit day question he had been examination that on the companion who were with his and another brother him; only had one drink riding in the with that he automobile wrong nothing him day; that was of there control. under that he at times had the automobile all counsel, appellant asked by was state’s cross examination On drinking,” he which “Did trouble with ever objected appellant “No, sir,” whereupon replied for counsel of an ground into a matter it inquiry on the that was involving it had not been and that moral offense an of such and convicted had tried shown that been being overruled, appellant re- Upon objection offense. quired he again question, to which the court to answer replied “I arrested or three times.” have been two re- overruling question and
In error. give fell into the court quiring his answer thereto him to of convicted appellant had been It not shown offense. may impeached by proof
A not be of mere accusa- witness particular tions him of acts of misconduct. or evidence Ann., P.C., Ed., 190, page 209, and cases See 1 Branch’s 2nd Sec. there cited. provision 732a, V.A.C.C.P.,
Under the
of Art.
fact
charged
a witness has been
an offense is
for
inadmissible
purpose
impeaching
charge
resulted
him unless the
State,
Rep. 44,
in a final conviction. Tomlinson v.
163 Texas Cr.
Furthermore,
2d
267.
the convictions must
be
involving
turpitude.
offense or one
Neill v.
Rep. 551,
Texas
Cr.
2d
and Mauldin v.
We.are unable to question pro- with the state that the pounded legitimate was within scope of cross examination appellant because the testified on direct examination that he never drank while with a rifle or that the answer was responsive appellant to the and should have there- fore moved to testimony. strike the The fine appellant being assessed in excess of the prescribed by law, minimum say testimony we cannot given by appellant previous over his relative to his arrests was not harmful to him. For pointed out, the error judgment is reversed and the cause remanded.
Opinion approved by the Court. WOODLEY, Judge, (dissenting) There are these additional facts not set out in the which are majority opinion: arresting driven automobile officer testified traveling he met it ditch when appellant east in the was borrow the borrow “why and turned to see he was around ditch.” go ditch As it the car “would from borrow he followed go highway and then to the and across center line back
back wobbling ditch, the road.” and down borrow was began liq- appellant officer smelled questioning he When drinking, he appellant and uor and asked what he had been “ Texas, Rio, replied liquor T at drank some beer over Glen * * * said he on the at and he New Mexico side over the bar’ hunting.” had been over there rabbit appellant whisky
There were three bottles in the car which driving, empty partly empty. was tle, according one and one third was A bot- witness, empty.
to the state’s Appellant’s passenger He testified brother was in the car. belonged that the third bottle was full and that the three bottles Nelson, occupant car; the third of the he had when the one Amarillo, purchased three left one he the un- at San Jon and opened purchased bottle he at the Rio. bar Glen
Appellant only took his brother testified day, one drink all and that a drink at the bar Rio. Glen *4 liquor
Asked his counsel how much his drank brother presence day, “None,” his that and answered vol- following: unteered the “Me and him had 22 rifles and both hunting something life, my and that is I never take done a drink of when I out a rifle.” with age appellant, having On cross-examination stated his and any “Q. you place residence, ever have was asked: Did “No, drinking?” sir.” trouble To which he answered following quotation of facts shows from the statement proceedings which followed: honor, if just Your “MR. Now wait minute. GARDNER: any that any questions on oifense he wants to ask this witness right. going into is turpitude, all If he involves moral is not ad- something turpitude it is that does not involve moral get you jury if missible and want to excused thrash until we out, asking you do, that is what I am if he wants and but going asking something is on insist him some little about misdemeanor, brought up is not admissible to be object him and we will to it. objection.
“THE COURT: Overrule “MR. Let SCOTT: the record show that counsel defense brought My question any out these matters. was if he had drinking. with his trouble question
“MR. jury. GARDNER: That is not before this jury before this is whether he was intoxicated on day question, and time and day what occurred the before year or the week issue, before or the before is not in and that is not an right turpitude, offense that involves moral and we have no to even make this jury. discussion of it before the He has right bring up no jury, it object except before the and we to it. “MR. SCOTT: Let the record show that I am not into
any prior they convictions unless do involve or mis- demeanor turpitude. “MR. certainly, GARDNER: Well whether a man drank or whether he hadn’t drunk does not involve moral there is no misdemeanor that involves moral just “There isn’t misdemeanor that involves moral tur- pitude, object and we question. “THE I objection. COURT: will overrule the “MR. exception. (8) GARDNER: our Note “Q. (By Scott) Mr. question, please, Answer the question again? Mr. Hunt- you er. A. Will ask the “REPORTER: Did ever trouble drink- ing? *5 again, my “MR. GARDNER: I Now want to renew on that. “MR. rephrase question, SCOTT: Let me the so the witness * * * going
understands it. I any am not into Honor, may a further ob- I make Your' “MR. GARDNER: not, not admis- that is person trouble or jection. Whether got prove They to have jury event. the sible before he has been involv- some offense accused, on tried and convicted ing objection.
“THE COURT: Overrule exception. (9) “MR. our GARDNER: Note to answer the witness instruct “MR. the Court SCOTT: Will question. question. answer the “THE ahead and COURT: Go I three times. “A. have been arrested two or “Q. you question whether or I am not into the my responsive question. I to have arrested. That is been drinking? No, said, I your A. ever had trouble haven’t.” foregoing record,
As I read the had the fact (for disclosed) arrested two or three times what is not been question was not elicited but volunteered. majority opinion to be that a defendant declares law prosecution may asked
in a hot be while intoxicated on cross-examination drinking,” trouble with whether he “ever had being theory question require that such would charges response arrests, testify and con- the defendant in to turpi- victions for misdemeanor offenses not tude. holding wrong. clearly may This I to be have ever believe One drinking” being so much arrested or “trouble with without charged Also, not an offense. crime. drunkenness alone is “testimony by appellant majority
The harm the finds is the answering objection,” im- over his held to be proper, “I arrested two or three times.” have been or three no further mention of the two
There was arrests, requested or and at no time the court to withdraw testimony jury disregard appellant’s instruct effect. respectfully
I dissent.