
    CARNES v. STATE.
    (No. 8735.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law &wkey;>l 115(2) — Bill of exceptions held to present no error in refusal to permit question whether jury would be opposed to suspended sentence.
    Bill of exceptions to refusal to allow defendant to ask entire jury panel whether, knowing defendant, they would be opposed to suspended sentence, presents no error, in absence of showing- therein that defendant was known to panel, or any of them, or that they were unwilling to be governed by law and testimony.
    2. Criminal law &wkey;>50 — Exclusion of doctor’s testimony that defendant would have no' resistive power under circumstances stated held not error.
    Exclusion of doctor’s testimony that defendant, thoug-h knowing right from wrong, would have no resistive power under circumstances stated, held not error; doctrine of irresistible impulse not being recognized in Texas,
    3. Criminal law &wkey;>lll9(4) — Bill of exceptions, giving no information as to pertinency of alleged improper statements to jury by district attorney, not considered.
    Bill of exceptions must be complete within itself, and bill giving no information as to per-tinency of alleged improper statements by district attorney in opening speech to jury cannot, be considered.
    4. Criminal law <&wkey;l 1701/2(2) — Bill of exceptions to question asked defendant by district attorney held to present no error, in view of negative answer.
    Bill of exceptions to question, asked defendant by district attorney, as to whether he had not asked latter to let him off in another matter, and promised not to do it any more, presented no error, in view of negative answer.
    5. Witnesses <&wkey;277(2) — Cross-examination of defendant as to unkept promises, similar to promises of good behavior made in testimony, if jury would recommend suspended sentence, held proper.
    Where defendant testified that, if jury would recommend suspended sentence, he would thereafter conduct himself properly, state’s attorney was properly permitted to cross-examine him. as to whether he had not made similar promises before, which he had not kept.
    6. Witnesses <&wkey;337(6) — Proof of prior charge and conviction of theft admissible to affect defendant’s credibility as witness.
    Where defendant asked benefit of suspended sentence and testified in his own behalf in burglary trial, proof that he had been legally charged with and convicted of theft, which involves moral turpitude, was admissible as affecting his credibility as witness.
    (gsalTor other eases see same topic and KEI' -in UMBER in all Key-lNumbered Digests and Indexes
    Appeal from District Court, Brown County ; J. O. Woodward, Judge.
    Chilt Carnes was convicted of burglary, and appeals.
    Affirmed.
    John Harris, C. L. McCartney, Jr., and Mark McGee, all of Brownwood, for appellant.
    Toni Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   LATTIMORE, J.

Appellant was convicted in tbe district court of Brown county of burglary, and bis punishment fixed at two years in the penitentiary.

Tbe facts sufficiently show tbe burglary by appellant of a garage from which a easing was taken by him. There are six bills of exception. Tbe first complains of tbe refusal to allow appellant to propound to tbe entire jury panel tbe following question:

“Knowing this defendant, would you be opposed to giving him the benefit of the suspended sentence law?”

Tbe bill recites that tbe state objected, tbe ground of tbe objection not being set forth, and that tbe objection was sustained. Tbe bill is entirely devoid of any showing of the fact that appellant was known to the panel, or any of them, and it may be that tbe objection was sustained because of this unwarranted assumption. The question was manifestly improper, as it appears in tbe bill. Unless tbe facts and circumstances justified tbe jury under tbeir oaths in granting a suspended sentence, it would be erroneous for them to extend such clemency. Setting forth no question of their willingness to be governed by tbe law and testimony, tbe propounding of such a question to a jury panel should not be allowed. No facts or circumstances are set forth .in tbe bill justifying tbe question.

Tbe second bill of exceptions complains-of the court’s action in sustaining the state’s objection to tbe testimony of a doctor, tbe effect of which would be that, notwithstanding appellant might know right from wrong, be would have no resistive powers under tbe circumstances set forth in tbe bill. This state does not recognize the doctrine of irresistible impulse, and many authorities might be referred to sustaining this proposition.

The third bill of exceptions complains of statements said to have been made by tbe district attorney in his opening speech to the jury. As far as we are informed by the allegations of tbe bill, the matters therein set forth may have been pertinent to evidence and issues brought out on the trial.' A' bill of exceptions must be complete within itself. The bill gives us no information but that appellant may have admitted on the trial that he was both a thief and bootlegger, under appropriate cross-examination.

Bill No. 4 appears not open to the objection made. Appellant was asking for a suspended sentence at the hands of the jury, and was asked if he had not come to the district attorney and asked him to let him off in another matter, and if he had not promised with tears in his eyes that he would not do it any more. The bill of exceptions shows that to the question propounded by the state’s attorney appellant returned a negative answer. The matter presents no error.

The fifth bill of exceptions shows that, while appellant was testifying as a witness in his own behalf, he stated, that, in the event the jury convicted him, if they would recommend a suspension of sentence, he would thereafter conduct himself properly. We believe it no transgression of fair rules for the state’s attorney on cross-examination to ask him if he had not made similar promises before, which he had not kept. The bill fails to disclose the answer of the witness, if any, to this question.

The remaining bill of exceptions presents complaint of proof of the fact that appellant had theretofore been charged and convicted of theft. Theft is an offense involving moral turpitude. Appellant was not only asking the benefit of a suspended sentence, but was a witness in his own behalf. Proof of his having been legally charged with or convicted of an offense, such as theft, would be admissible as affecting his credibility as a witness.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant’s motion argues again the matter set up in the first and third bills of exception. The allegations of each of said bills are as stated in our original opinion, and are not sufficient to show within themselves any error, and the motion is overruled.  