Smith v. StateSmith v. State
- Reporters:
- , ,
- Before:
- Graves
The conviction is for burglary of a privatéarésidence at nighttime, with a punishment of: five years in the penitentiary.
There is only one bill of exсeptions in the record, arid that relates to the district attornеy propounding to the--witness Jesse-Martin the following question: “State whеther or not you have been indicted and convicted and are now serving-a term in the- penitentiary for this same case,” to which question the defendant’s attorney immediately objected, and moved -that the same be stricken out because “improper and prejudicial to the defendant,” whereupon the court sustained thе objection and instructed the jury not to consider the question, nor‘-imрlications from the same, and the appellant’s attorneys fhrthe‘r excepted to said question and said proceeding on the ground’ that same was highly improper and prejudicial to the right‘s- of the appellant, and the court could not withdraw the evil effects from the jury, notwithstanding the court’s instruction to the jury not to” consider the sаme. -’
That such a question was a highly improper one can not be doubted, although it was not allowed to be answered; neverthelеss appellant’s attorney’s objection thereto was bound to have created in the minds of the jury the impression that at anothеr and different trial the witness had been convicted for the identical offense for which the appellant was. being tried, and the punishmеnt prescribed in such other conviction “wás now béing suffered by the witness. This matter could; not have been alluded to by the State’s attorney for аny‘..other purpose.’ The witness was his witness, and he surely• was- not attemрting to impeach his own witness; he had no right to do so, and’ the effeсt of such question, unanswered though it was, could only be to let the jury know that another jury, or another, court, had seen fit to convict this witness оn’ a similar state of facts.
This court has said in Childress v. State, 92 Texas Crim. Rep., 215, 241 S. W. Rep., 1029, that the asking of an” improper question can ordinarily be cured by the court’s instruction to disregard such, provided such question is asked in good faith, unless the question is of such a nature as to be extremely hurtful citiiig. Overstreet v. State, 68 Texas Crim. Rep., 238, 150 S. W. Rep., 899. However we can scarcely conceive of a more hurtf qüéstión than to ask if the witnеss, who wás éngáged in the commission of the same offense for which the aрpellant was ‘-“charged, had not already been convicted for ‘such- offtense and AVa‘s -séívi-ng a term in the penitentiary therefor. Thе ap^ *384 pellant’s attorneys were forced to object thereto, and such objection could only lead the jury to conсlude that such facts were true, and the necessary implications had to follow. We think the court’s prompt instruction could not pоssibly eliminate these conclusions and implications from the jury’s mind.
We can not agree with appellant’s contention, made in his brief, thаt the testimony herein is insufficient upon which to predicate a сonviction. It is true that the witness Martin was an accomplice, аlthough the court did not so charge, and was not requested to chаrge such, and no duty devolves upon us to reverse on account of such failure. See Rivas v. State, 265 S. W. Rep., 583; however, in our opinion there was other testimony outside of Martin’s corroborating his testimony and tending to connect the appellant with the commission of the offense charged.
In accordance with what we have herein said, this cause is reversed and remanded.
Reversed and remanded.