Lee v. State

• Decision Date: 26 March 1903
• Citation: 73 S.W. 407
• Parties: LEE v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 407

LEE v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1903.

Appeal from Fannin County Court; W. A. Evans, Judge.

Toney Lee was convicted of violating the local option law, and appeals. Reversed.

Jas. H. Lyday, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25, and 20 days' confinement in the county jail.

The state was permitted to prove by defendant, on cross-examination, over his objections, that six or eight months prior to the institution of this prosecution he (defendant) was indicted for selling, in violation of the local option law, a drink called "Waukesha"; that he pleaded guilty in one case, and was fined and sent to jail for 20 days. Appellant objected to said testimony because the same in no way tended to prove the charge for which he was on trial, that the same would prejudice his case, and that the same was a separate and distinct crime. These objections are well taken. Johnson v. State (Tex. Cr. App.) 62 S. W. 756; Denton v. State, 70 S. W. 217, 1 Tex. Ct. Rep. 567; Walker v. State (Tex. Cr. App.) 72 S. W. 997; and McAnally v. State (just decided) 73 S. W. 404. In Ware v. State, 36 Tex. Cr. R. 599, 38 S. W. 198, we used this language: "Such evidence was not introduced with reference to the identity of this transaction, or with reference to the intent of defendant in committing the burglary in this case, or as developing the res gestæ of this transaction. They may or may not have been contemporaneous crimes, but, when contemporaneous crimes are admitted for the various purposes for which they may be used, it means that character of contemporaneous crimes that sheds some light on the transaction then under discussion. The defendant may have committed the burglary, and stole the property of other people. He may have stolen Mr. Haeger's pig, or Mrs. Ewing's cup, or Mr. Jackson's hay, but they are not shown to have had any connection with or to shed any light upon the question that was then being tried by the jury." And so with this transaction. The fact that appellant had previously been convicted and paid a fine for selling Waukesha, beer, or other intoxicants, would not be evidence of his guilt of the charge now on trial.

The second bill complains that, while the witness "Charley Oldham was being cross-examined by defendant, he admitted that he was at that time confined in the Fannin county jail on three criminal charges pending in said court, and, on being asked the nature of the charges, refused to testify, and would and did not testify as to the nature of said charges against him, whereupon defendant offered to introduce the clerk of said county court, to identify the record of said charges, and offered to read in evidence the information in each of said cases, charging said Oldham with theft, for the purpose of attacking his credibility as a witness in said case, and for the purpose of allowing the jury to consider it in weighing the credibility of said witness, and for no other purpose. But the court excluded said testimony." In Lights v. State, 21 Tex. App. 308, 17 S. W. 428, we held it was competent to introduce evidence of the fact that appellant had been in the penitentiary for a crime, for the purpose of discrediting him. This case overrules State v. Ezell, 41 Tex. 35, announcing the contrary doctrine. In Woodson v. State, 24 Tex. App. 162, 6 S. W. 184, the Lights Case was reaffirmed. In Carroll v. State, 32 Tex. Cr. R. 434, 24 S. W. 100, 40 Am. St. Rep. 786, both of said cases are quoted with approval; the court stating (quoting from Real v. People) "that a witness on cross-examination may be asked whether he has been in jail, penitentiary, or other place that would tend to impair his credit," and whether he has been convicted, or whether he has had a charge preferred against him, and that such inquiry may be made even if the party is out on bond. The court states: "This character of cross-examination is permitted upon the theory that, where a man's life or liberty depends upon the testimony of another, it is of the highest importance that they whom the law makes the exclusive judges of the facts and the credibility of the witnesses should know how far the witness is to be trusted." The rule that a witness may be impeached by asking...