Cox v. State , 81 Tex. Crim. 90 ( 1917 )

In a motion for rehearing appellant urges error in the opinion heretofore affirming the judgment. We deem it unnecessary to restate the question urged in the motion. Appellant's general reputation for character was placed in issue. The State was permitted to show that he had been charged with perjury, and twice convicted in the same case. When appellant, in reply to queries, stated that he had been charged but acquitted of perjury, the matter should have stopped, and appellant's objection to further inquiry should have been sustained. There had been a perjury case against him and this was shown. Then he was asked whether he was acquitted. Upon the affirmative answer the State was permitted to show that in the same case on two trials he had been convicted by the jury. The judgments had been set aside and the jury finally rendered the verdict of acquittal.

We are of opinion that we were in error in sustaining this action of the court. The judgment was affirmed upon the theory that the court's charge instructing the jury that appellant would not be considered a convict until a final disposition of the conviction had occurred against him, and this was a sufficient withdrawal of the testimony from the consideration of the jury, but upon further consideration we have reached the conclusion we were in error. The charge it will be noticed did not withdraw the testimony from the jury, and it was not withdrawn, but the jury was instructed that the effect of the former conviction did not render him a convict. The testimony that he had been twice convicted remained before the jury. This testimony was not admissible, and was of rather a material and damaging nature. It may be also stated that he had filed a plea for suspended sentence. Even had the court withdrawn from the jury the consideration of the testimony for any purpose, it would not have cured the error. The testimony was not admissible from any viewpoint. Clements v. State, 61 Tex.Crim. Rep.; Haney v. State, 132 S.W. Rep., 34; Darnell v. State, 58 Tex. Crim. 585, 126 S.W. Rep., 1122; Baldridge v. State, 45 Tex. Crim. 193, 74 S.W. Rep., 916; Crowell v. State, 56 Tex. Crim. 480, 120 S.W. Rep., 897. On the erroneous ruling of the court admitting the testimony, see Jennings v. State,55 Tex. Crim. 147, and Goad v. State, 52 Tex.Crim. Rep.. Other cases might be cited, but these are sufficient.

Believing we were in error in affirming the judgment for the reasons above indicated, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment reversed and the cause remanded.

Reversed and remanded.