Merriwether v. State

• Decision Date: 03 March 1909
• Citation: 116 S.W. 1148
• Parties: MERRIWETHER v. STATE.
• Court: Texas Court of Criminal Appeals

116 S.W. 1148

MERRIWETHER v. STATE.

Court of Criminal Appeals of Texas.

March 3, 1909.

Appeal from Hill County Court; N. J. Smith, Judge.

R. S. Merriwether was convicted of violating the local option law, and he appeals. Reversed and remanded.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

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

There is only one question of any merit or moment raised on the appeal, and that relates to a matter occurring on cross-examination of appellant. He denied the sale of liquors as charged. On cross-examination he was asked by the county attorney the following question: "Is it a fact that some time before this transaction you were arrested here in Hillsboro, charged with selling whisky in violation of the prohibition law, and convicted, and served your time on the poor farm?" This question and the answer sought to be elicited thereby were objected to, because same were immaterial to any issue involved in the cause on trial, threw no light on any issue involved, did not affect the credibility of the witness, and were prejudicial to the rights of the defendant. These objections were by the court overruled, and the witness was required to answer and did answer that it was a fact that he had been arrested, charged, and convicted for violating the local option law in Hill county. This question was ruled on in the case of Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969. There Levine was asked the question, "How many times have you been convicted for violating the liquor and Sunday law?" In passing upon the admissibility of this testimony, the court say: "This, we think, was a legitimate question. Appellant was on trial for violating these laws, and the purpose of the testimony was to discredit the defendant as a witness." In the case of Dickey v. State (Tex. Cr. App.) 56 S. W. 627, the court went further. It was there held that it was not error to permit counsel for the state to ask defendant, who became a witness in his own behalf, whether he had not kept his place open for business and sold beer on Sunday, prior to the date of the offense charged. This testimony was held to be admissible, not only for the purpose of discrediting appellant and as affecting his credibility, but it was stated such evidence may also be used to make out the offense against him. Judge Davidson, it seems, was absent when this case was handed down. We undertook to distinguish these cases from a decision rendered recently in the case of Jennings v. State, 115 S. W. 587, where we held that, when an appeal was yet pending, no inquiry would be permitted touching a former conviction, for the reason, in substance, if the appeal is still pending, the judgment of conviction was not final. It should be further stated that in this case the court gave the following instruction touching the matter above referred to: "The evidence as to the other sale and conviction heretofore of the defendant is admitted for the purpose of affecting the credibility as a witness of the defendant, if in fact it does affect his credibility as a witness, and you will consider such evidence for that purpose and that only."

The cases cited above are difficult to reconcile with the case of Stewart v. State, 37 Tex. Cr. R. 135, 38 S. W....