Plunk v. State

Appellant was convicted in the district court of Van Zandt county of selling intoxicating liquor, and his punishment fixed at three years in the penitentiary. J.B. Rogers testified for the State that on a certain night he went to the home of appellant and bought from him two pint jars full of whisky for which he paid him $2.50. Said witness was accompanied to the home of appellant by the sheriff, a constable and justice of the peace. These three men stood outside of appellant's house and watched Rogers when he went inside and saw him come back with the whisky in his possession, which he delivered to the sheriff. The officers testified to such facts. The appellant put on the stand a number of witnesses who stated they were in his house on the night in question *Page 142 and that Rogers did not come in said house nor purchase from appellant the liquor mentioned. Appellant complains of the fact that the State was permitted to prove by the sheriff, and also to ask appellant while he was on the stand if it was not true, that he was then under indictment in other felony cases pending against him. Appellant's objection to this seems to be that such testimony was not admissible because the indictments grew out of the same transaction which formed the basis for the instant prosecution. In his qualification to the bills of exception the learned trial judge states that it was in no way shown that the transactions were the same. In Mr. Branch's Annotated P.C., Sec. 167, numerous authorities are cited supporting the proposition that the defendant may be impeached as a witness by proof of pending indictments against him for felonies or misdemeanors involving moral turpitude. It seems to be the settled holding of this court. The case of Wright v. State, 140 S.W. Rep., 1105, cited by appellant, involves only the point that where a complaint is filed against the accused before an examining magistrate which has never been merged into an indictment, after sufficient time has elapsed for same to take place, it furnishes no basis for impeachment of the accused. Appellant also complains of the testimony of the sheriff to the effect that when witness came out of appellant's house he told the officer that appellant's child was sick. In our opinion this was hearsay, but we are unable to detect anything in it which could be held at all injurious to appellant's case. Appellant insists that it might have been used by the jury as affecting the credibility of his witnesses and as upholding the credibility of Rogers. Upon this question as to whether Rogers went into appellant's house on the night of the alleged sale, the witness was supported by the three officers mentioned who testified that they saw him go in and saw him come out. The fact that the jury elected to believe the State witnesses and not to give credence to those of appellant would not seem any cause for reversal, nor are we able to follow the reasoning of appellant in his effort to show that the fact that the officer testified that Rogers told him appellant's child was sick, and that he, therefore, did not arrest appellant on the night in question, could have had the effect of causing the jury to more readily believe Rogers. Being unable to agree to any of appellant's contentions, and being of opinion that the record presents no error, an affirmance will be ordered. Affirmed. ON REHEARING.