White v. State , 33 Tex. Crim. 177 ( 1894 )

A bill of exceptions recites, that "the State introduced as a witness Henry Williams, who, having been duly sworn, testified, that he had been convicted of the crime of manslaughter, had served a term of two years in the State penitentiary of Texas, under a sentence on said conviction, and that he had not been pardoned or restored to citizenship." Exception was reserved to the introduction of said Williams as a witness, upon the ground that he was incompetent to testify by reason of such conviction. The exception having been overruled the witness testified. The same action and proceedings occurred in relation to the witness Johnson, who had been convicted of felonious theft, and had served a term for such conviction. From the face of these bills, it is apparent the testimony showing the incompetency of the witnesses was elicited, when offered by the State, for the purpose of rendering them incompetent, and not for the purpose of attacking their credibility. This being the case, they should have been held incompetent and their evidence rejected. It is unquestionably correct that the best evidence of the incompetency of a witness who has been convicted of an infamous offense is the record of such conviction; but it is equally certain that such fact may be shown by other evidence, in the absence of objection to that manner of making the proof. Had the State interposed objection to the mode of proving the incompetency of the witness the court would doubtless have sustained the objection, because the conviction of a witness for an infamous crime can not be proved by the witness on his voir dire, he not being bound to answer, nor would his answer be the best evidence of which the case was susceptible. Cooper v. The State, 7 Texas Crim. App., 194; Perez v. The State, 8 Texas Crim. App., 610; Id., 10 Texas Crim. App., 327. But it does not follow that the opposing side may not waive this right, and permit the admission of inferior evidence to prove the fact. The competency of the witness being the issue, upon objection urged it was held that the records must be produced, or their absence properly accounted for, before other evidence could be resorted to to show such incompetency. Perez v. The State, 10 Texas Crim. App., 327. But it seems this rule does not apply when the credibility of a witness only is sought to be attacked on cross-examination, for in that state of case he may be compelled to answer as to his previous convictions of infamous crimes. Lights v. The State, 21 Texas Crim. App., 308; Carroll v. The State, 32 Tex. Crim. 431; Goode v. The State, 32 Tex.Crim. Rep.; The People v. Rodrigo (Cal.), 11 Pac. Rep., 481; Hollingsworth v. The State (Ark.), 14 So. W. Rep., 41; Whart. Crim. Ev., secs. 477, 489; Real v. The People, 42 N.Y. 270.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.