Curtis v. State , 46 Tex. Crim. 480 ( 1904 )

Appellant was convicted of perjury, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant made a motion to quash the indictment on various grounds, among others, that the indictment alleged appellant was tried on an information presented in the county court, and it should have alleged he was tried on an information and complaint. We do not understand that it is necessary to allege the complaint. Of course, information must be based on a complaint, but the trial is on the information, and in the absence of some showing it will be presumed that the information was properly based on complaint. Nor was it necessary to allege the character of the game played. The law inhibits all gaming with cards, no matter whether money or anything of value is bet or not, except where the game is played at a private residence. The indictment alleges that it was not played at a private residence. We do not deem it necessary to discuss other matters set out in the motion to quash. The court properly overruled the same.

Appellant insists that the record fails to show that there was a proper legal trial in the county court, because no information or complaint was introduced in evidence. An inspection of the record shows that while the information and complaint were both in the hands of the witness Judge Alexander, and identified by him as the complaint and information, still these were not formally introduced in evidence. But we think the parol proof here sufficiently shows that the trial in the county court was on a charge against defendant Reuben Curtis, for playing at a game with cards, and that issue was joined between the State and defendant on that charge. While the whole judgment was not introduced, we think sufficient of the same was introduced to identify the case on trial in connection with the parol evidence of the witnesses. We do not think the evidence presented any variance between the testimony of the witnesses and the place where said game was alleged to have been played, in order to have required a special charge on that subject. Nearly all of the witnesses say it was at a point west of Weatherford. One witness says it was northwest.

Appellant also complains that the court erred in not permitting him to prove by the witness Tom Hullum, on cross-examination, that he had separated from his wife and that he had been convicted for whipping his wife, and had been with the county convicts on the county road working out a fine assessed against him for beating and making an assault on his wife. The State objected to this testimony, on the ground that it was immaterial and inadmissible; that the conviction was not of a felony, or of an offense involving moral turpitude, and accordingly could not be used to discredit the witness. On the other hand appellant contends that the indictment for perjury could only be sustained on the testimony of two credible witnesses, and that the jury were entitled to every fact and circumstance which might tend to show that the witnesses were not credible. He further contends that it is competent to ask a witness on cross-examination if he has not been in jail, has not been a county convict; and he further insists that while all misdemeanors may not involve moral turpitude, yet that an aggravated assault which shows that one had been convicted of whipping his wife does involve a degree of moral turpitude which would suggest that a prosecution of perjury could not be maintained on the evidence of such witness. There are a number of cases which hold that a conviction of simple assault does not involve moral turpitude; but we are not advised of any case which holds that a conviction for aggravated assault does not involve moral turpitude. The text books seem to hold that on cross-examination a witness can be asked if he has ever been in jail charged with crime, regardless of the nature of the accusation. Good v. State, 32 Tex.Crim. Rep., and authorities there cited. And generally on cross-examination a witness can be asked his occupation, or his vocation, as that he is a gambler and follows that occupation for a living; or that the witness keeps a house of prostitution. This is upon the sound principle that it is not presumed a witness who follows some disreputable vocation or calling for a living is as capable of telling the truth as one who pursues some legitimate or honorable vocation. McCray v. State, 44 S.W. Rep., 170, and authorities there cited. An aggravated assault involves as a part of the punishment confinement in the county jail for two years as a maximum punishment; and we think it may be conceded that one who has been found guilty of whipping his wife well merits the severest punishment. If such offense does not directly involve moral turpitude, it is certainly very close akin to it. At any rate, our statute with reference to perjury requires that the conviction can alone stand upon the testimony of two credible witnesses. Here the conviction was based upon the testimony of this witness Tom Hullum and one other, who was shown to be a professional gambler, and confessed to stealing cards in this particular game. We believe that in this character of case the fullest latitude should be permitted appellant in order to show that the witnesses against him were not credible; and that on the cross-examination of this witness he ought to have been permitted to prove he had been in jail; had been working on the roads of the county as a convict, under a conviction for an aggravated assault in whipping his wife. Because the court refused to admit this testimony, the judgment is reversed and the cause remanded.

Reversed and remanded.