Thomas v. State , 63 Tex. Crim. 98 ( 1911 )

Appellant was convicted of murder in the first degree, his punishment being assessed at life imprisonment.

1. When the case was called for trial appellant made a motion to quash the special venire. The facts in that connection show that a special venire of 125 names had been drawn and a certified copy of those summoned had been served on the appellant except six of the summoned jurors. These six were not served upon him, and upon this ground he made motion to quash, and insisted upon the one entire day's service of the whole number summoned by the sheriff. The sheriff was permitted to amend his return, and the motion to quash was overruled. The venire was not thereafter served on appellant, Under the authority of Kellum v. State,33 Tex. Crim. 82, this was error. That case seems to be directly in point.

2. The State was permitted over appellant's objection to prove that he had fourteen years prior to this trial been charged with an assault with intent to murder. Various objections were urged to this, among others, that it was too remote. The objections were overruled, and the appellant required to testify, which he did, to the effect that he had been indicted for that offense fourteen years prior to this trial. Under all of our authorities the admission of this testimony was error. Busby v. State,48 Tex. Crim. 83; Bogus v. State, 55 Tex.Crim. Rep.; Winn v. State, 54 Tex.Crim. Rep.. These are a sufficient number of cases to illustrate the point and sustain appellant's proposition.

3. Having permitted this testimony to go before the jury, the court did not limit its effect and appellant reserved exception on this point. Under the authorities the court should have limited the effect of this testimony. Upon another trial, however, this testimony will be excluded. It is unnecessary to discuss the matter further.

4. It is unnecessary to discuss the refusal of the court to continue the case. The evidence of the absent witness may be obtained upon another trial.

For the errors indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.