Pearson v. State, 15526.

• Decision Date: 18 January 1933
• Docket Number: No. 15526.,15526.
• Parties: PEARSON v. STATE.
• Court: Texas Court of Criminal Appeals

57 S.W.2d 841

PEARSON v. STATE.

No. 15526.

Court of Criminal Appeals of Texas.

January 18, 1933.

State's Rehearing Denied March 15, 1933.

Commissioners' Decision.

Appeal from District Court, Bosque County; O. B. McPherson, Judge.

Carl Pearson was convicted of murder without malice, and he appeals.

Reversed and remanded.

H. J. Cureton, of Meridian, and Tirey & Tirey, of Waco, for appellant.

J. P. Word, Co. Atty., of Meridian, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, Judge.

Conviction is for murder without malice; punishment, four years in the penitentiary.

Appellant was charged with the unlawful killing of one Gladys Crawford. His whole defense was that of a mistake in identity in that he thought and believed that he was shooting at and killing a negro woman whom he claimed to be a concubine of his father, who was some 75 or 76 years of age at the time. Appellant contended that said negro woman had been living with his father for some time prior to the killing. The appellant himself testified to the facts touching the killing substantially as follows: "I went out there and went up to the top of the hill and turned my car around and came back and got out and went in there for the sole purpose of telling this negro woman that if they moved back to town I was going to have to kill them. As I opened the door and went in right where I had seen this negro woman —I had been out there and seen her slipping around and poking her head from out behind things, and on this occasion as I stepped in the door Mrs. Crawford (deceased), evidently thought it was her husband or somebody coming in for she stepped right out there where I had seen this negro woman on two or three occasion, stepped right out that identical way, and when I laid eyes on her it was dark in that room, as dark as could be—and I had my gun down and I don't know whether I put it to my shoulder or not; I don't remember; but I just `snap', `snap', thinking all the time I was killing that negro woman. I would not have shot Mrs. Crawford for the world."

Bill of exception No. 2 complains of the following action in regard to the witness Loy Poole, a negro, in regard to the admission in evidence of his testimony for the state. The bill shows that for the purpose of making objection, the appellant's counsel interrogated said witness as to whether or not he had been to the penitentiary. The bill shows that said witness without objection admitted that he had been to the penitentiary one time and he went from Bosque county; that he had served his sentence out and gotten a discharge from the penitentiary, and the bill shows that the defendant objected to said witness' testimony when it was offered for the reason that the record shows that the witness had been convicted of a felony in this state on or about October 4, 1926, and said witness had never been pardoned and no pardon was introduced by the state showing that said witness had been pardoned, and offered in support of said objection the judgment and sentence showing that said witness had been convicted of a felony and sentenced to a term of two years in the penitentiary on the 4th day of October, 1926. The court overruled appellant's objection to said Poole testifying and qualified said bill to the effect that the witness was convicted in October, 1926, and was not in the penitentiary at the time of giving this testimony.

We think the court was correct in admitting the testimony of said witness. The evidence showed that he was convicted on October 4, 1926. Article 708, C. C. P., before it was amended by the 39th Legislature (Laws 1926, c. 13 [Vernon's Ann. C. C. P. art. 708]), which amendment went into effect in January, 1927, provided that "all persons who have been or may be convicted of felony in this State, and who are confined in the penitentiary shall not be permitted to testify in person in any court, for the State or for the defendant, but their deposition may be taken by the defendant as in other criminal cases provided by law." It will be noted that under said act above set out a person who had been convicted and who is confined in the penitentiary shall not be allowed to testify. Said article referred to, article 708, was construed in the case of Alexander v. State, 103 Tex. Cr. R. 620, 281 S. W. 852, to mean that an unpardoned convict has the same right to testify as a pardoned one, provided he is not incarcerated in the penitentiary at the time of trial. See, also, Brunett v. State, 114 Tex. Cr. R. 244, 26 S.W.(2d) 208.

By proper bill of exception, it is shown that on the trial of this case one Oscar Maberry, when placed upon the stand by the state, testified without any objection on behalf of the state that he had been convicted and sent to the state penitentiary for the offense of perjury from Bosque county and he had been pardoned after he had served about 19 months; that he was convicted of the offense of perjury in 1912. The bill further shows that no objection was made by the state to the answer of the witness that he had been sent to the penitentiary. It is true that the witness testified that he had a pardon but none was produced and offered in evidence, and the appellant did offer the judgment of conviction and sentence, and, as we understand the bill, objected to the witness' testimony unless the pardon was duly shown in evidence. We think that the objection of the defendant to the competency of the witness should have been sustained. Before the amendment to article 708 of the Code of Criminal Procedure by the...