Underwood v. State

12 S.W.2d 206, 111 Tex. Crim. 124, 63 A.L.R. 978, 1928 Tex. Crim. App. LEXIS 784

Opinions

LATTIMORE, Judge.

Conviction for murder; punishment, death.

. Appellant plead guilty. Substantially the only contention is that the witnesses who testified against appellant upon this trial were convicts ; that they were serving out their sentences in prison and had not been pardoned, and that they were incompetent to testify for that reason. Appellant admits that the alleged murder was committed on a prison farm, and he further admits that since the commission of this offense the State legislature has passed a law under which the testimony of convicts confined in the State penitentiary might be received in cases where such testimony became material and the alleged offense was committed in the penitentiary or upon one of the State farms. Appellant, however, contends that because such testimony was inadmissible at the time the alleged offense was committed, notwithstanding the law making such testimony admissible had become effective at the time of the trial, same was' as to him an ex post facto law and that the trial judge erred in admitting the testimony.

In Mrous v. State, 31 Texas Crim. Rep. 597, citing Hopt v. Utah, 110 U. S. 574, we held the admission of the testimony of a seduced female in a seduction case, not erroneous, over the objection that at the timé the offense was committed, the injured female was incompetent as a witness, — the statute rendering her competent having been enacted subsequent to the commission of such offense. The principle seems identical with that involved in the instant case. The doctrine is reaffirmed in James v. State, 72 Texas Crim. Rep. 457. In Volume 10, Note on U. S. Reports, we find the holding in the Hopt case, supra, approved in Gibson v. Mississippi, 162 U. S. 590; Thompson v. U. S., 171 U. S. 384; State v. Ah Jim, 9 Mont. 173; People v. McDonald, 5 Wyo. 538. All of the complaint made by appellant’s counsel, who were appointed by the court to defend this unfortunate man, seems based upon their objection to the testimony of the various convicts who were present at the time'of the alleged homicide, the objections relating to the question above briefly discussed. We regard the matter as settled in this State adversely to the appellant’s contention.

Finding no error in the record, the judgment will be affirmed.

Affirmed.