
    DODD v. STATE.
    (No. 4687.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Indictment and Information <§=>132(5)— Election — Readin& Indictment to Juey.
    The court having selected the count on which defendant should be tried, constituting an election, the whole information should not have been read to the jury.
    2. Criminal Law <®=406(3) — Evidence—Conversation with Defendant under Arrest.
    A conversation between defendant and officers having him under arrest, detailing his conduct complained of, he not being warned, was inadmissible.
    3. Criminal .Law <©=>730(12) — Improper Argument of County Attorney — Instructions.
    A special charge requested by defendant as to unwarranted language of county attorney in argument denouncing him a thief, as to which the court refused to take any action, should have been given.
    4. Witnesses <§=>337(5) — Character of Accused — Prior Prosecutions.
    Defendant, on a prosecution for drunkenness, not having placed his character in issue, the county attorney should not have questioned him as to having been prosecuted in other counties, and Ms reason for leaving them, and as to the number of times he had been prosecuted where he was then living.
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Hubert Dodd was convicted, and appeals.
    Reversed and remanded.
    Critz & Woodward, of Coleman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. *
   DAVIDSON, P. J.

Appellant was fined $1 under a conviction for being drunk at a private house.

The evidence is sharply at issue on the question of appellant being drunk at the residence of Lofiin where, it is claimed ■ by the state, he was in a state of intoxication. The information contains three counts: First, that appellant was intoxicated in the private house of Jim Lofiin; second, that he was intoxicated in a public place, to wit, in a public road; and third, in a public place, to wit, in the private residence of Jim Lofiin where people had then and there assembled for purposes of amusement. The entire information was read to the jury over objection of appellant. On a previous trial the first count alone was submitted. When the ease was called at a succeeding trial, all three of these counts were read. Appellant urged various objections. It is suggested that, this being a misdemeanor, the question of election as to counts in the information is not subject to the same rule as in felonies. We deem it unnecessary to discuss that phase of the law. The court had elected upon which count appellant should be tried at a previous trial, and had so instructed the jury. He having pleaded not guilty on former trial to all the counts, the court selecting one of them was an election. It is useless to discuss the question as to whether it was necessary or not. The court had matured this into a fact. The first and third counts, however, covered the same transaction. The state’s contention was that appellant was drunk at Jim Loflin’s place, and that the evidence showed there was a social function in vogue; people had gathered and were enjoying themselves. While standing at the door of the room where the dancing was in progress, the state’s evidence goes to show that he used unbecoming language, and that Loflin called the attention of one of the parties who was dancing on the floor to that fact, and he engaged appellant in a fight in which appellant was badly beaten, especially about the mouth and face. He left for home, and his mother bathed his face with a cloth saturated with whisky, and he also took a drink after reaching home, which was his father’s residence. About 9 or 9:30 the sheriff was called from the county seat and reached the place somewhere from 11 to 12 o’clock, and found appellant at his father’s residence and took him in custody. Going along the public road the sheriff, a deputy sheriff and the county attorney engaged appellant in a conversation, detailing his acts and conduct and other matters, to which appellant objected for various reasons. We believe this testimony was inadmissible. He was under arrest, no warning had been given him, and it was a conversation about acts occurring between the parties at Loflin’s. It may be further stated this evidence could not be introduced to show that he was drunk in a public road. Jn the first place, that count had passed out of the information and could not be submitted to the jury, and in the second place he was under' arrest and was carried on the public road, and this conversation occurred an hour and a half or two hours after the matters are said to have occurred at Loflin’s house, and could have no bearing upon his conduct at Loflin’s house, especially under the facts stated.

The county attorney made some remarks in his argument to which serious objections were urged, among other things, he denounced defendant a liar and a thief. The court refused to take any action in the matter, and appellant asked a special charge, which was refused. We are of opinion this charge ought to have been given. The language used by the county attorney was not warranted, especially with reference to being a thief.

Another bill recites that, while appellant was testifying, he was asked by the county attorney if there had not been various indictments and prosecutions against him in Taylor county while he lived in that county; also asked him if he had not been jirosecuted by the county attorney of Eannin county while he lived there, and how many times he had been prosecuted by the present county attorney since he had been in Coleman county, and why did he leave Taylor county, and why he left Fannin county. Various objections were urged to this manner of questioning the witness,, which seems to have been sustained. This was clearly inadmissible so far as this record shows, and should not have been indulged. Without discussing this matter, in support of this finding we refer to the case of Bullington v. State, 180 S. W. 681, where this character of examination of a witness was discussed at some length by Judge Harper, and also in the later case of Faulkner v. State, 189 S. W. 1079, where the matter was again reviewed and the principle laid down in the Bullington Case, supra, reaffirmed. Appellant did not place his character in issue.

The judgment is reversed, and the cause remanded. 
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