Allred v. State

105 S.W.2d 236, 132 Tex. Crim. 480, 1937 Tex. Crim. App. LEXIS 296

• Court: Court of Criminal Appeals of Texas
• Decided: March 10, 1937
• Docket: No. 18749.
• Status: Published

Opinions

KRUEGER, Judge.

— Appellant was convicted of the of fense of robbery, and his punishment was assessed at confinement in the state penitentiary for a term of five years.

Bill of exception number one reflects the following occurrence. The district attorney on cross-examination asked appellant if he was under indictment in Randall County and appellant replied in the affirmative. Thereafter on re-direct examination appellant undertook to explain his innocence of the charge and how he came to be charged with the theft. The State objected and the objection by the State was sustained. Appellant contends that if he had been permitted to do so he would have testified that said indictment grew out of a family squabble; that it was the result of a gun play which his landlord (White) had made on him; that his landlord (White) came over and jumped on him with a gun; that he had another person with him who impersonated an officer; that White told him he came over to give him his “pedigree.” The explanation thus offered by appellant as hereinabove set out did not tend to show he was innocent of the offense of theft; neither was the same an explanation thereof favorable to him, nor did it relieve him from the odium of the offense charged. The rule is well established that when a defendant or any other witness who has been impeached by proof that there are indictments pending against him for an offense which involves moral turpitude, he is entitled to show such explanatory circumstances in connection with the indictment inquired about as would remove the implication of untruthfulness and would serve to re-instate him as a witness. But in the case under consideration appellant’s proffered explanation merely showed that he at sometime had been assaulted by his landlord and another party which had no direct reference to or bearing upon the charge of the offense of theft then pending against him in Randall County. Nor did it tend to explain away the moral turpitude which flowed from the offense and attached to his character as a credible witness. Hence there was no error in the ruling of the court here complained of.

The second bill of exception is in question and answer form without a certificate from the trial court that it is necessary that it be in such form. Hence the same cannot be considered under art. 760, C. C. P. See also Monday v. State, 124 Texas Crim. Rep., 44.

The objections addressed to the court’s charge have been duly considered by us and deemed to be without merit. We have gone over the statement of facts and have reached the conclusion that the testimony is sufficient to sustain the conviction.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the. Court of Criminal Appeals and approved by the Court.