*1 sale, whisky purpose possess he did not for the he for, guilty only pos- if acquitted; he was was entitled to be whisky purpose An is en- of sale. accused sessed presentation an affirmative of his defense. titled to that, presented, here The conclusion facts mentioned, charge supported (2d) Rat- lant was to the entitled 343; 142, Goss v. liff v. State, Randell v. 104 Tex. Cr. 285 S. W. Rep. 278, W. 210. 102 Tex. Cr. mentioned, of the trial court'

For and the is remanded. reversed cause 'by of Criminal Riley v. The State.

Willie No. 22591. Delivered October 1943. Rehearing Denied November *2 The Cunningham Boling Cunningham, of all Lub- & and Jimmie

bock, for the of

BEAUCHAMP, Judge. appeal

The a is from conviction for without murder malice. jury penalty years penitentiary. a assessed of in the two necessary It will not be to state the facts of the case. The jury’s by question verdict sustained the evidence. The one presented by argument brief and oral to of relates the bills exception per- which of the action of in the court mitting attorney appellant, upon the district ask to cross examination, if he had not been convicted of a in Knox County eight years prior to the time of the in about indictment attorney appellant the instant case. informed the court conviction, attorney prior giving the and the district of place placing the accused on the witness date of Taking position that the former conviction too stand. remote, requested prosecution that be to not instructed any presence jury. it of questions about in the The trial ask in the view that conviction was too seemed to concur any purpose in the case on trial for admissible but remote to be permit question to asked and the that he would be stated jury not he would instruct to and then answer judge the trial had been correct in If the evidence. sider remote, too then in- evidence was became opinion that him, the facts revealed in upon cumbent attorney to case, refrain the district from ask- to instruct this Ann. P. it. Branch’s Sec. ing any about Vick question State 160 W. and McGill v. 353. We are 159 S. v. State however, was in the court in opinion, this touching go proper evidence respect. a witness in own behalf. This credibility large conclusion is based on the consideration a number court, holding rule there is no absolute may any as to time which cir- be considered without Judge Hawkins, to make cumstance the evidence in inadmissible. (2d) Lott v. 60 S. W. lead- discusses number ing sustaining following cases declaration: (page 225) absolutely “No iron-bound rule laid down has been lapse to determine the of time that renders a conviction affecting credibility remote to be shown as evidence as of time must witness. be considered connection peculiar with the facts and circumstances of each individual age case. The ing at the time witness the claimed discredit- place, conviction took and his ele- conduct are taken ments that must be into account.” Judge Morrow, (2d) at *3 185, says: “Whether, page ain case which the accused behalf, reception testifies in his own of evidence of his previous gen- indictment or of a conviction is admissible erally speaking, arbitrarily is not to be determined alone, intervening of time but the conduct of is a the accused pertinent inquiry and often determines whether Shipp or proof is admissible too remote. Tex. See cited, including 283 W. and Cr. S. cases therein Ard v. 263.” See also Branch’s Ann. P. Sec. 167. cite, conclusively From numerous to is offense, length held that nature of the sentence during imposed, intervening time, party of the conduct surrounding circumstances, may well as and should be determining admissibility considered of the evidence. appears have the view of numerous been trial courts ten arbitrarily accepted years in time should be exclusion date, evidence after which becomes too remote. case, supra, helpful particular contains discussion on this question. us, phase, In the case of the no is reference offense, length ap- of the to the nature made time which penitentiary, age, pellant served anything eight years duct, other than about or in time. weAs insufficient, standing alone, render the view evidence being and the error which the inadmissible court made favor- is one of which cannot able to before this court. questions raised are overruled. The

Other of the is affirmed.

ON FOR REHEARING. MOTION DAVIDSON, Judge. again

We have and remain examined convinced original disposition the conclusion reached case was correct. appellant’s rehearing motion overruled. Criminal Dewey

Ex Parte Strawn. No. 22673. Delivered November *4 Randolph Galveston, Pierson, Judge.

HAWKINS, Presiding Appellant charged by Court, complaint was in Justice Pre- County, No. 1 of Galveston with theft. June cinct On examining an held and the Justice bound grand fixing $1,000.00. jury, grand over to the bond at lant empanelled term of the District June