Davis v. State , 122 Tex. Crim. 516 ( 1932 )

Appellant became a witness in his own behalf, and testified that he was unaware that there was whisky being transported in the car in which he was riding. On cross-examination he testified that he had been convicted two weeks before the present trial for violating the liquor law; that he was charged in two cases for selling liquor; that he had been indicted in "this court" for possessing liquor for the purpose of sale.

The main charge consists of nine subdivisions, and ends on page 10 of the transcript. No reference is made therein to the previous offenses of which the appellant had been charged and convicted. On page 11, however, is a supplemental charge of which the second subdivision reads as follows: "The Court has submitted for your consideration testimony showing that the defendant stands charged by indictment for other felony offenses. Also, that the defendant has been convicted for the sole and only purpose for your consideration in passing uponthe credibility of the testimony of the defendant given upon the witness stand and you will not and must not consider it for any other purpose whatsoever. In no event can you convict the defendant for any other offense than the one for which he is now standing trial."

On page 13 are various exceptions to the court's charge. Subdivision 6 is directed to the paragraph of the supplemental charge quoted above. Such subdivision is as follows: "Defendant excepts to said charge of the court as a whole, because the same now here instructs the jury the legal effect of the proof that this defendant has been charged and convicted of other offenses, but leaves the same open for the jury to consider for any purpose they see fit."

On page 16 of the record is paragraph 8 of the appellant's objections, which reads as follows: "Defendant excepts to paragraph 2 of the Court's supplemental charge because same does not correctly instruct the jury upon the issue therein submitted, and because same is upon the weight of the evidence."

Complaint of paragraph 2 is also embraced in Bill of Exception No. 9.

In his brief the appellant complains that paragraph 2 of the charge is violative of his rights, and cites Lozano v. State, 83 Tex.Crim. Rep., 202 S.W. 510, 511, and Stull v. State, 47 Tex.Crim. Rep., 84 S.W. 1059. In the Lozano case, supra, the instruction given to the jury and the comment of the court upon it is as follows:

" 'The State was also permitted by the court to elicit from the witness Andres Pena that he had been indicted, tried, and acquitted for the killing of Carlos Nacke. I charge you that same was admitted by the court for the sole purpose of affecting the credibility of the witness Andres Pena testifying in this case, and you shall consider it for no other purpose.'

"This character of evidence is admissible for impeaching purposes, but the jury should not be told that it does impeach. Such charge is upon the weight of the evidence. The charge should have been so given as to not suggest to the jury that it did affect his credibility. The jury should be left free to consider it for impeaching purposes, or as affecting his credibility. They might consider it for that purpose. The jury are the judges of the weight of the testimony and the credibility of the witnesses."

The charge in the Stull case, supra, like that in the Lozano case, quoted above, was held bad for the reason that its effect was the sole purpose of affecting the credibility of the witnesses. It is unlike the charge in the present case in which it is said that the evidence was admitted "for the sole and only purpose for your consideration in passing upon the credibility of the testimony of the defendant given upon the witness stand." The distinction seems evident. The vice in the charge in the cases mentioned is not found in that of which complaint is made upon the present appeal.

The motion for rehearing is overruled.

Overruled.