Carnes v. State , 101 Tex. Crim. 273 ( 1925 )

LATTIMORE, Judge.

Appellant was convicted in the district court of Brown county of burglary, and his punishment fixed at-two years in the penitentiary.

The facts sufficiently show the burglary by appellant of a garage from which a casing was taken by him. There are -six bills of exception. The first complains of the refusal to allow appellant to propound to the entire jury panel the following question: “Knowing this defendant would you be opposed to giving him the benefit of the suspended sentence law?’’ The bill recites that the State objected, the ground of the objection not being set forth, and that the objection was sustained. The bill is entirely devoid of any show ing of the fact that appellant was known to the panel or any of them; and it may be that the objection was sustained because of this unwarranted assumption. The question was manifestly improper as it appears in the bill. Unless the facts and circumstances justified the jury under their oaths in granting a suspended sentence, it would be erroneous-for them to extend such clemency. Setting forth no question of their willingness to be governed by the law and testimony, the propounding of such a question to a jury panel should not be allowed. No facts or circumstances are set forth in the bill justifying the question.

The second bill of exceptions complains of the court's action in sustaining the State’s objection to the testimony of a doctor, the effect of which would be that notwithstanding appellant might know right from wrong, he would have no resistive powers under the circumstances set forth in the bill. This State does not recognize the doctrine of irresistible impulse, and many authorities might be referred to sustaining this proposition.

The third bill of exceptions complains of statements said to have been made by the district attorney in his opening speech to the jury. As far as we are informed by the allegations of the bill the matters therein set forth may have been pertinent to evidence and issues" brought out on the trial. A bill of exceptions must be complete within itself. The bill gives us no information but that appellant may have admitted on the trial that he was both a thief atid bootlegger, under appropriate cross-examination.

Bill No. 4> appears not open to the objection made. Appellant was asking for a suspended sentence at the hands of the jury, and was asked if he had not come to the district attorney and asked him to let him off in another matter, and if he had not promised with tears in his eyes that he would not do it any more. The bill of exceptions shows that to the question propounded by the State's attorney appellant returned a negative answer. The matter presents no error.

The fifth bill of exceptions shows that while appellant was testifying as a witness in his own behalf he stated that in the event the jury convicted him, if they would recommend a suspension of sentence he would thereafter conduct himself properly. AA7e believe it no transgression of fair rules for the State’s attorney on cross-examination to ask him if he had not made similar promises before which he had not kept. The bill fails to disclose the answer of the witness, if any, to this question.

The remaining bill of exceptions presents complaint of proof of the fact that appellant had theretofore been charged and convicted of theft. Theft is an offense involving moral turpitude. Appellant was not only asking the benefit of a suspended sentence, but wás a witness in his own behalf. Proof of his having been legally charged with or convicted of an offense such as theft would be admissible as affecting his credibility as a witness.

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

Affirmed.