Jennings v. State , 82 Tex. Crim. 504 ( 1918 )

Appellant was convicted of the unlawful sale of intoxicating liquor in territory where the sale was prohibited by law. The offense was a disdemeanor and the punishment fixed at a fine of $25 and twenty days confinement in the county jail. The sale was proved by the State; denied by appellant, and the defense of alibi interposed. These issues were submitted to the jury in a charge which was not complained of.

The offense of pursuing the business of selling intoxicating liquor in prohibited territory being a felony, proof on cross-examination of appellant that he had been indicted therefor was legitimate for impeachment purposes, and his bill of exception complaining thereof is without merit. Branch's Ann. P.C., p. 101, sec. 167, and cases cited.

Proof that appellant had been charged in the Federal court with the sale of intoxicating liquors without a license was not admissible for the purpose of impeaching him. It was a misdemeanor not imputing moral turpitude, and proof of this class of offenses has been frequently held inadmissible for the purpose of impeachment. Branch's Ann. P.C., pp. 102 and 103, sec. 169; Shepherd v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 609; Hightower v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 186; Johnson v. State, 67 Tex.Crim. Rep., 149 S.W. Rep., 165; Clay v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 280; Kirksey v. State, 61 Tex.Crim. Rep.; Hightower v. State, 60 Tex.Crim. Rep.; Jennings v. State, 55 Tex. Crim. 147; Marks v. State, 78 S.W. Rep., 512; Lee v. State,45 Tex. Crim. 51; Stewart v. State, 37 Tex.Crim. Rep., 38 S.W. Rep., 1144; Tyrrell v. State, 38 S.W. Rep., 1011; Merriwether v. State, 55 Tex.Crim. Rep., in which case Judge Ramsey, passing on the question, states the rule as follows: "We understand the rule to be that charges preferred in a legal manner, and certainly convictions of crime which imply moral turpitude, are receivable in evidence as affecting the credibility of a witness or a defendant, but this rule has not been applied, we think, and should not be applied in respect to convictions which do not involve moral obliquity or of the grade of felony, or such as are not of the class that the law recognizes as involving moral turpitude."

The admission of the illegal testimony mentioned requires a reversal of the lower court, which is ordered.

Reversed and remanded.