Cooke v. State

Appellant calls attention to the fact that upon cross-examination of state's witness Harper he admitted that he had been in the "federal penitentiary." Based upon this alone it is urged here now for the first time that we should hold Harper to have been disqualified as a witness, and should discard his testimony, in which event it is claimed the other evidence is insufficient to support the conviction. This point has never been considered, it being now raised for the first time. It was not claimed upon the trial that Harper was incompetent to testify. No preliminary questions seem to have been directed towards developing facts to disqualify him, and when it developed on cross-examination that he had been in the "federal penitentiary," it does not appear that any motion was made to withdraw the testimony on direct examination. No record proof of his conviction is shown. No bill of exception is found complaining of anything incident to the matter. The jury was instructed to consider Harper's conviction of a felony only in passing upon his credibility as a witness. There was no objection to such instruction. The conviction seems to have been regarded throughout the trial as bearing only on the impeachment of Harper. No point having been made in the court below that he was an incompetent witness we cannot assume that he was such; the presumption under the record would be either that his competency had been restored, or that theverbal proof of his conviction of a felony was permitted for impeachment purposes only and not to disqualify him. Price v. State, 147 S.W. 243; Brown v. State, 101 Tex.Crim. R.,274 S.W. 588; Watts v. State, 67 Tex.Crim. R., 148 S.W. 310; Harris v. State, 67 Tex.Crim. R., 148 S.W. 1071. For other authorities see Note 26, Art. 708, Vernon's Ann. Tex. C. C. P. It is not necessary to discuss whether an unpardoned convict, not in the penitentiary at the time of trial, is competent to testify. We only refer to subdivision 3, Art. 708, C. C. P., and the amendment of such subdivision by the 39th Legislature (1st C. S.), Chapter 13, page 20, which was subsequent to the opinion in Alexander's Case, 103 Tex.Crim. R., 281 S.W. 852.

The other questions suggested have already been considered.

The request for leave to file second motion for rehearing is denied.

Denied.