Appellant, Thompson, and Moore were jointly indicted for the crime of robbery. Thompson was tried and
acquitted. While testifying in behalf of appellant this fact was sought to be proved by this witness, but, on objection by the State, was rejected. This was error. His complicity in the robbery was kept prominently before the jury throughout the trial. This tended, clearly, to affect and impair the force of his testimony. Proof of his acquittal would have tended to place him in a much more favorable light before the jury, and it was of the greatest importance to appellant that this should be so. When the credibility and standing of a witness have been attacked by evidence that he had been charged with an infamous crime, it certainly is admissible to prove his acquittal of that charge.
Appellant introduced portions of the testimony of Dick, the party charged to have been robbed, taken before the examining court, for the purpose of contradicting or impeaching him. The State was permitted to introduce the whole of his evidence taken on said trial. This testimony is not set out in the bill of exceptions, and it is therefore impossible for us to tell whether it was or was not erroneously admitted. Wilson's Crim. Stats., secs. 2368, 2516. If this testimony was necessary to explain or throw light upon that portion of the evidence used to discredit the witness, it was clearly admissible.
For the purpose of contradicting the witness Goode, the State introduced his testimony taken in the same examining court. Objections were based upon Goode's denial of the correctness of the record offered, and his statement that it was false; that he had not read it before signing it; and that, had it been read to him, he would have declined to sign it. This testimony was, it seems, totally at variance with his evidence on the final trial. For the purpose for which it was used, this testimony was correctly admitted.
On his cross-examination, appellant was made to answer that he had been previously arrested for burglary, robbery, and theft. Exceptions were reserved. A defendant may testify in his own behalf, and this though he may remain unpardoned for conviction of an infamous crime. Williams v. The, 28 Texas Crim. App., 301; Shannon v. The State, 28 Texas Crim. App., 474; Newman v. The People, 63 Barb., 630; Morgan v. The State,86 Tenn. 472; Whart. Crim. Ev., 9 ed., sec. 429. He may be contradicted, impeached, and sustained in the same manner, and occupies the same place, and is to be treated as other witnesses. McFadden v. The State, 28 Texas Crim. App., 241; Huffman v. The State, 28 Texas Crim. App., 174; Quintana v. The State, 29 Texas, Crim. App., 401; Mendez v. The State, 29 Texas Crim. App., 608; White v. The State, 30 Texas Crim. App., 652; Ferguson v. The State, 31 Tex.Crim. Rep.. He need not testify — is not compelled to do so — but when he does his credibility is subject to like attacks as other witnesses. Mr. Wharton says: "It has been ruled also, that to affect his credibility he may be asked whether he has been in prison on other charges." Whart. Crim. Ev., 432,
and note 5; McGarry v. The People, 2 Lans., 227; Brandon v. The People, 42 N.Y. 265; Connors v. The People, 50 N.Y. 240; The People v. Casey, 72 N.Y. 393; Quintana v. The State, 29 Texas Crim. App., 401; McFadden v. The State, 28 Texas Crim. App., 241. In Peck's case the Supreme Court of Tennessee said: "Surely the courts would be slow to place a construction upon an act of the Legislature (if there were room for construction) that would allow a witness to be sworn, and give his testimony against that of a good and true man, when the State's attorney knows and is ready to prove him wholly devoid of moral sense and utterly unworthy of belief, and at the same time prevent the State from showing the character of the witness, as affecting his credit. Under this act, a man repeatedly convicted of the crime of perjury can go before the jury, in a community where he is unknown, and, with a good manner and fair exterior, give evidence in his own behalf, and the State remain powerless to impeach him, if the position contended for were tenable. Prior conviction of an infamous crime does not incapacitate him as a witness." 6 So. W. Rep., 390, 391. He may be asked "whether he has suborned testimony in the particular case, and whether he has been concerned in other crimes, part of the same system." Whart. Crim. Ev., 432, and notes.
The decisions are practically harmonious to the effect that the defendant as a witness occupies the same position as any other witness; is liable to be cross-examined as to any matter pertinent to the issues of the trial; may be contradicted, impeached, and sustained as any other witness, and is subject to the same tests. See Quintana v. The State, supra, for collated authorities. This court after mature deliberation held, that the credibility of a witness can be attacked by evidence that he has been charged with the commission of an infamous offense, or that he has been arrested for a crime involving legal and moral turpitude. Carroll v. The State,32 Tex. Crim. 4311; Goode v. The State, 32 Tex. Crim. 505; Lights v. The State, 21 Texas Crim. App., 308; see also The People v. Rodrigo (Cal.), 11 Pac. Rep., 481; Hollingsworth v. The State (Ark.), 14 So. W. Rep., 41. The status of the accused as a witness being determined and fixed as other witnesses, it would follow, under the rule laid down in the Carroll case, that he is subject to the same rules and tests. The decisions are hardly reconcilable upon any other theory. Again, every witness is presumed to be truthful. This presumption, like all presumptions, may be overcome. This presumption applies alike to all the witnesses who testify. It would hardly be asserted that the presumption of truthfulness does not apply to the accused, for this would abrogate the rule that he stands upon the same equality with the other witnesses. If he is presumed untruthful it would be wholly unnecessary to attack his credibility, and his evidence would be wholly unnecessary and worthless, and the statute authorizing his testimony
worse than foolishness. Or, if he be exempt from the same attack as the other witnesses, then to that extent the presumption of truthfulness becomes conclusive, and therefore binding upon the courts and juries. The law, however humane in guarding the rights of the accused while on trial, certainly did not intend to clothe the presumption of his truthfulness in any particular with an unapproachable and inviolable sanctity. Again, it is permissible, when tending to establish identity, intent, or to develop the res gestæ, to prove contemporaneous crimes. And this may also be done when the object is to show system. Hennessey v. The State, 23 Texas Crim. App., 340; Whart. Crim. Ev., 9 ed., 38. These matters may be shown by any competent evidence or witness — even by the defendant himself. Id., 432., and notes. In such state of case, the purpose of such proof must be explained to the jury in the charge of the court. It would seem that when such evidence is admitted for the purpose indicated, the charge limiting its purpose is required in order to prevent a conviction of an offense for which the accused is not then being prosecuted. So, if the accused is required to testify to such facts, either as original evidence or to affect his credit as a witness, the court should give appropriate instructions and inform the jury as to the purpose of admitting the testimony. When such testimony is sought only for the purpose of impugning the standing of the witness, and is denied by him, the answer is usually binding, and the party eliciting the answer is in general precluded from contradicting the witness as regards that particular question. As was said in Carroll's case: "It is also to be observed, that when a witness is asked a question which tends to disgrace him, and he answers that question, the cross-examining party is in general bound by the answer, if collateral to the issue, and only going to the credit of the witness, for to admit contradicting evidence would raise collateral and independent issues not relevant to the main question." 32 Tex.Crim. Rep.; 1 Greenl. on Ev., 455; Best on Ev., 100; 2 Phil. on Ev., 950. The evidence was correctly admitted, and the court in the charge properly limited it to the office and purpose for which it was admitted.
The court should have omitted the charge given in relation to the use of deadly weapons. This means of committing the robbery was not averred.
The judgment is reversed and the cause remanded.
Reversed and remanded.
HURT, Presiding Judge, concurs.
DISSENTING OPINION.