Franco v. State , 132 Tex. Crim. 164 ( 1937 )

CHRISTIAN, Judge.

— The offense is murder; the punishment, confinement in the penitentiary for twelve years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Jose Cordova by shooting him with a gun.

According to the testimony of the State, appellant was not justified in killing deceased. Appellant’s testimony raised the issue of self-defense.

Over appellant’s proper objection, the State elicited from him the fact that he had been arrested in 1980 for fighting. In the charge the court instructed the jury that the testimony relative to appellant’s arrest for fighting had been admitted for the purpose of assisting the jury, if it did, in passing, upon the credibility of appellant as a witness. The jury were further advised that they would consider said testimony for no other purpose. Appellant excepted to the giving of the charge, and pointed out in the exception that said testimony should be withdrawn from the consideration of the jury. The matter presents reversible error. Said testimony was inadmissible to impeach appellant inasmuch as it referred to a misdemeanor not involving moral turpitude. Williams v. State, 91 S. W. (2d) 709.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.