
    SIPANEK v. STATE.
    (No. 9039.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.)
    1. Witnesses <®^52(7) — Wife indicted with husband cannot testify for him. .
    Wife indicted with husband for possessing intoxicating liquor held precluded from testifying for him by Code Cr. Proc. 1911, art. 791.
    2. Intoxicating liquors <&wkey;233(2) — Evidence of secretion of whisky by defendant’s wife held admissible.
    Evidence that defendant and his wife were in joint possession of whisky for sale held to warrant admission of evidence of her secretion thereof after arrival of officers to search premises. .
    3. Indictment and Information &wkey;>176 — Testimony as to- purchasing whisky from defendant at former dwelling place held admissible.
    Testimony as to purchase of whisky from defendant at latter’s former dwelling place within period of limitation held admissible; state not being confined to proof of possession of whisky found on defendant’s premises at time of search.
    4. Witnesses <&wkey;359 — Judgment of conviction of felony must be produced to disqualify witness.
    T,o disqualify witness by proof of his conviction of felony, judgment of- conviction must be produced.
    5. Witnesses <&wkey;359 — Oral proof of witness’ conviction of felony admissible to impeach him.
    Oral proof of. witness’ conviction of felony is admissible to impeach him.
    6. Witnesses <&wkey;359 — Pardon of witness shown to have been convicted of felony must be • proved- by Governor’s proclamation.
    Pardon of' witness, shown to have been convicted of felony, must be proved, if relevant, by Governor’s proclamation, not by parol testimony.
    7. Witnesses &wkey;>345 (4) — Conviction of crime may be proved to- discredit witness, notwith- . standing pardon.
    Witness’ conviction of crime may be proved to discredit him, notwithstanding unconditional pardon, which merely restores his competency as witness.
    8. Criminal law <&wkey;l 169(10) — Admission of state’s witness’ oral testimony as to pardon for felony, of which convicted, held reversi.ble error.
    Admission of oral testimony of state’s witness, shown to have been convicted of felony, that he had been pardoned, held reversible error as probably tending to support his testimony in jury’s opinion and thus injure defendant. :
    Appeal from District Court, Matagorda County; M. S. Munson, Judge.
    John Sipanek was convicted: of- possessing intoxicating' liquor, and appeals.
    Reversed.
    W. S. Holman, of Bay City, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The unlawful possession of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The premises of the appellant were searched,and a gallon and a half of whisky found in the plowed ground about 100 feet from his dwelling. At the time of the search he was on the side of his house doing some work upon a window. The circumstances detailed by the officers who made the search were such as justified the jury in con-eluding that the wife of the appellant, after the arrival of the officers, carried the whisky mentioned from a little outhouse and placed it in the field, throwing an apron over it to hide it. About 10Ó yards from the house were found some empty molasses cans and two five-gallon cans which appeared to have been smoked. At the time of the transaction appellant resided upon the premises of the witness Malone, who claimed that the appellant had not received permission to occupy the house in which he was living. Appellant and his family, consisting of his wife and three children, had recently moved to a house about 300 yards distant from where they had previously resided. The witness Malone testified that at the former dwelling place he bought a gallon of whisky from the appellant’s wife in the presence of the appellant; that upon another occasion he bought a quart of whisky from her and paid the money to the appellant.

Another witness by the name of Gale testified that he had moved certain jugs, bottles, and a copper kettle from- the previous dwelling place of the appellant to that which he occupied at the time of his arrest, and that these were moved at the request of the appellant, who at the time stated that he had made whisky in the copper kettle. Gale also testified that he did work for the appellant in consideration for whisky. The testimony of Gale, as well as that of Malone, was denied by the appellant.

The wife of the appellant was offered by him as a witness, but rejected upon the ground that she was indicted for the same offense. She was not available as a witness for the appellant. Under the facts, as we understand them, she was precluded from testifying in his behalf by reason of article 791, C. C. P.

The testimony tending to show that she acted with the appellant .in the possession of whisky for the purpose of sale and in hiding it upon the present occasion justified the receipt in evidence of the testimony showing her conduct. The evidence led to the con-elusion that she was a coprincipal, and her cqnduct in secreting the whisky, which', according to the state’s theory, was in the joint possession of herself and the appellant, was admissible against him. See Pierson v. State, 18 Tex. App. 561, and other cases cited in Branch’s Ann. Tex. P. C. § 695, subd. 3.

The testimony of the witness Malone that he had bought whisky from the appellant and his wife when they resided at their former dwelling place was not improperly received. The transactions related by him were within the period of limitation, and were available to the state as a basis for a conviction under the averments in the indictment. The law did not confine the state to the particular transaction in which the whisky was found on the premises of the appellant at the time of the seareh.

When the witness Gale was offered by the state, appellant proved by him that he had been convicted of a felony and sent to the penitentiary. This proof was offered to disqualify -the witness. State’s counsel, however, objected to its receipt for that purpose, but conceded its admissibilty for the purpose of discrediting the witness. In order to disqualify the witness, it would have been necessary for the appellant, in the face of the objection mentioned, to have produced the judgment of conviction. Cooper v. State, 7 Tex. App. 194; Perez v. State, 8 Tex. App. 610; White v. State, 33 Tex. Cr. R. 177, 26 S. W. 72, and other cases collated by Mr. Branch in his Ann. Tex. P. C. § 18. Oral proof of the conviction of the witness Gale was admissible, however, for the purpose of impeachment. Lights v. State, 21 Tex. App. 313, 17 S. W. 428; Carroll v. State, 32 Tex. Cr. R. 433, 24 S. W. 100, 40 Am. St. Rep. 786; and other cases collated in Branch’s Ann. Tex. P. C. § 167. The witness was permitted on redirect examination, over the appellant’s objection, to give oral testimony to the effect that he had been pardoned. If relevant, the pardon should have been proved by the Governor’s proclamation, and not by parole testimony. From Cooper’s Case, supra, we quote;

“Authority to grant pardons in Texas is conferred upon the Governor by the eleventh section of article 4 of our Constitution. When granted, ‘a pardon may (and should) be proved by production of the charter of pardon under the great seal of the state.’ Schell v. The State, 2 Texas Ct. App. 30; Roberts v. The State, 2 Overt. 423; The State v. Blaisdell, 33 N. H. 388; 1 Greenl. on Ev. § 317. In case of loss of original, the proof may be made by certified copy under the great seal of the state.”

See, also, Schell v. State, 2 Tex. App. 30; Hunnicutt v. State, 18 Tex. App. 520, 51 Am. Rep. 330.

The relevancy of a pardon, in the mind of the writer, is questionable. An unconditional pardon of one convicted of crime restores his competency as a witness, but does not remove the stigma of conviction. Thus, when one who has received a full pardon is used as a witness, proof of his conviction may be made as a discrediting fact, notwithstanding the pardon. Wharton’s Crim. Ev. (8th Ed.) § 489. See, also, Bennett v. State, 24 Tex. App. 79, 5 S. W. 529, 5 Am. St. Rep. 875, in which it is said:

“A pardon * * * removes the disability, but does not change the common-law. principle that the conviction of an infamous offense is evidence of bad character for truth.”

See, also, Greenl. on Ev. (13th Ed.) § 377.

Evidence of the pardon having been improperly received, the effect of the error becomes a subject of inquiry.

According to the evidence which is not controverted, the appellant’s eyesight was impaired to a degree which partially disabled him. He could go about the premises, but could do no work which required close attention. It seems from the testimony of the state’s witness Malone that the appellant’s wife was the principal actor, and it was from her conduct in removing and hiding the whisky which impressed the officers who made the search. The witness Gale, however, testified to a contract with the appellant to exchange whisky. for services; also to an admission by the appellant that he had manufactured whisky. By his testimony appellant controverted the evidence given by both Gale and Malone, and declared that Malone was an enemy, stating certain facts upon which he based that statement. What weight the jury gave to the testimony of the appellant and to each of the state’s witnesses is, of course, a subject of conjecture. Appellant testified that he had given his wife no authority and had no knowledge of the fact that she possessed the whisky that was found upon the premises at the time of the search. It is impossible for us to determine with certainty whether the evidence improperly received prejudiced the appellant’s case in the minds of the jury. In their opinion, it probably tended to support the witness Gale, and to that degree was calculated to injure the appellant. As to whether it did so being doubtful, we feel constrained to resolve the doubt in favor of the appellant, and order a reversal of the judgment. 
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