Hunter v. State

• Decision Date: 22 April 1959
• Docket Number: No. 30626,30626
• Citation: 168 Tex.Crim. 160,324 S.W.2d 17
• Parties: Roy Isace HUNTER, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 17

324 S.W.2d 17

168 Tex.Crim. 160

Roy Isace HUNTER, Appellant, v. STATE of Texas, Appellee.

No. 30626.

Court of Criminal Appeals of Texas.

April 22, 1959.

Reynold M. Gardner, Amarillo, for appellant.

John L. Scott, Jr., County Atty., Vega, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $350.

A motion to dismiss the appeal has been filed in this court by the County Attorney who prosecuted the case because a copy of the statement of facts has not been filed with the clerk of the trial court as required by law. The failure to file the statement of facts in duplicate as required by Art. 759a, Sec. 4, Vernon's Ann.C.C.P., does not divest this court of jurisdiction of the appeal. Paulos v. State, 157 Tex.Cr.R. 341, 248 S.W.2d 928. The motion is therefore overruled.

It was undisputed that on the date alleged the appellant drove his automobile upon a public highway in Oldham County, and the only conflict in the evidence was on the issue of his intoxication.

The highway patrolman who stopped and arrested the appellant, after describing his manner of driving and his actions and appearance, testified that in his opinion the appellant was on such occasion under the influence of intoxicating liquor. Another officer who observed appellant after his arrest testified that in his opinion the appellant was under the influence of intoxicating liquor.

Appellant, as a witness in his own behalf, testified on direct examination that on the day in question he had been rabbit hunting with his brother and another companion who were riding in the automobile with him; that he only had one drink of whiskey that day; that there was nothing wrong with him and that he at all times had the automobile under control.

On cross-examination by State's counsel, appellant was asked 'Did you ever have any trouble with drinking,' to which he replied 'No, sir,' whereupon counsel for appellant objected to the inquiry on the ground that it was going into a matter of an offense not involving moral turpitude and that it had not been shown that appellant had been tried and convicted of such an offense. Upon the objection being overruled, appellant was required by the court to again answer the question, to which he replied 'I have been arrested two or three times.'

In overruling appellant's objection to the question and requiring him to give his answer thereto the court fell into error.

It was not shown that appellant had been convicted of any offense.

A witness may not be impeached by proof of mere accusations against him or evidence of particular acts of misconduct. See 1 Branch's Ann.P.C., 2nd Ed., Sec. 190, page 209, and cases there cited.

Under the provision of Art. 732a, V.A.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of impeaching him unless the charge has resulted in a final conviction. Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267. Furthermore, the conviction must be for a felony offense or one involving moral turpitude. Neill v. State, 158 Tex.Cr.R. 551, 258 S.W.2d 328, and Mauldin v. State, Tex.Cr.App., 308 S.W.2d 36.

Drunkenness is not an offense involving moral turpitude. Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590, and Garrison v. State, 94 Tex.Cr.R. 541, 252 S.W. 511. Also, drunken driving is not an offense involving moral turpitude. Burton v. State, 149 Tex.Cr.R. 327, 194 S.W.2d 398.

The question propounded did not relate to a felony offense or one involving moral turpitude and appellant's objection thereto should have been sustained.

We are unable to agree with the State that the question propounded was within the legitimate scope of cross-examination because the appellant testified on direct examination that he never drank while hunting with a rifle or that the answer was not responsive to the question and appellant should have therefore moved to strike the testimony.

The fine assessed against appellant being in excess of the minimum prescribed by law, we cannot say that the testimony given by appellant over his objection relative to his previous arrests was not harmful to him.

For the error pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

WOODLEY, Judge (dissenting).

There are these additional facts which are not set out in the majority opinion:

The arresting officer testified that the automobile driven by appellant was traveling east in the borrow ditch when he met it and turned around to see 'why he was driving in the borrow ditch.'

As he followed it the car 'would go from the borrow ditch back to the highway and across the center line and then go back to the borrow ditch, and was wobbling down the road.'

When he began questioning appellant the officer smelled liquor and asked appellant what he had been drinking, and he replied "I drank some beer and liquor over at Glen Rio, Texas, on the New Mexico side * * * over at the bar' and he said he had been over there rabbit hunting.'

There were three whisky bottles in the car which appellant was driving, one was empty and one partly empty. A third bottle, according to the State's witness, was empty.

Appellant's brother was a passenger in the car. He testified that the third bottle was full and that the three bottles belonged to Nelson, the third occupant of the car; one he had when the three left Amarillo, one he purchased at San Jon and the unopened bottle he purchased at the bar in Glen Rio.

Appellant and his brother testified that appellant took only one drink all day, and that was a drink of whisky at the bar in Glen Rio.

Asked by his counsel how much liquor his brother drank in his presence that day, appellant answered 'None', and volunteered the following: 'Me and him both had 22 rifles and was hunting and that is something I never done in my life, take a drink of whisky when I was out hunting with a rifle.'

On cross-examination appellant, having stated his age and place of residence, was asked: 'Q. Did you ever have any trouble with drinking?' To which he answered 'No, sir.'

The following quotation from the statement of facts shows the proceedings which followed:

'Mr....