299 S.W. 399 | Tex. Crim. App. | 1927
Lead Opinion
The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.
A statement of the evidence heard is not before this court. In the absence of such a statement it is not possible to appraise the bill of exceptions complaining of procedure, unless in the bill there is embraced sufficient evidence to make it plain that an error which necessarily prejudiced the appellant's case was committed. The complaint is that the court instructed the jury that the witness, Charlie Still, was an accomplice. The criticism is that such a charge implies that an offense has been committed in which the accused is a party. This criticism has been held untenable. Torres v. State,
In bill of exceptions No. 3 it appears that appellant, while testifying in his own behalf, was asked, as a predicate for impeachment, if he had not been charged with theft of an automobile tire. To this he answered in the affirmative, stating that he was arrested for such an offense. It later developed from his testimony that there was no charge against him filed in court. Upon appellant's request the jury was instructed to disregard all reference to the theft of an automobile tire. Part of this appears in the qualification to the bill. As qualified the bill reveals no error.
In bill of exceptions No. 4 it appears that while appellant was under cross-examination he was asked if he had not had a conversation with the witness, Thomas, in which Thomas had advised appellant to refrain from making any statement, and that he might escape punishment by laying the offense upon Charlie Still. Appellant denied the conversation, and the court instructed the jury to disregard the question and all reference to the matter. The bill fails to show error. We add, in reference to all of the bills, that they are not in such condition that in the absence of knowledge of facts that were before the trial court and jury at the time of passing on the motion for new trial, we are unable to determine that appellant's case was prejudiced by any of the transactions mentioned.
The judgment will be affirmed.
Affirmed.
Addendum
Appellant renews his insistence that because the indictment charged him with the theft of a bale of lint cotton, and the charge of the court referred to the property alleged to have been taken merely as "a bale of cotton," this is a variance. We are not able to agree with this proposition. It is a matter of common knowledge that a bale of lint cotton is ordinarily referred to as a bale of cotton. The further fact appears also that in the charge the court specifically referred to a bale of cotton "As described in the indictment." This is the usual method of directing the jury's mind to the indictment for a more extended description of the property involved. The indictment is ordinarily read to the jury, the accused pleads thereto, and the indictment is taken into the jury room upon retirement. We think such practice is entirely proper.
We know of no authority in this state holding it wrong to ask one who is on trial for an offense, and who takes the witness *190 stand in his own behalf, if he has not been arrested and charged with a felony or some offense involving moral turpitude, the purpose being to lay a predicate for the impeachment of the accused and to thus affect his credibility as a witness. This was done in the instant case, and the accused admitted that he had been arrested and charged with theft. This was entirely correct. Later, upon discovery that following the arrest of the accused for theft no legal charge had been filed against him, the court instructed the jury not to consider the testimony. In this we perceive no error. The court's action was correct in admitting the testimony in the form same appears in the bill of exceptions, in the first instance, and certainly the court was correct in endeavoring to correct the effect of the admission of this testimony when it was later developed that no legal charge had been filed. The record does not reflect that any objection was made at the time of the asking of this question of the appellant, based on the proposition that no legal charge followed his arrest. If such objection had been made, it seems entirely probable that this question would have been then investigated and the objection sustained upon it being shown that following such arrest no charge had been filed.
Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.
Overruled.
Application to file second motion denied, November 23, 1927.
