
    REES v. STATE.
    (No. 8961.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.
    State’s Rehearing Denied Jan. 13, 1926.)
    1. Intoxicating liquors <§=3227 — Witness should be allowed to state names of people who told of accused’s bad character.
    Where witness in prosecution for selling intoxicating liquor volunteered information that defense counsel could find out from people on street that accused was a “bad egg,” in reply to questions about other matters, although matter was immaterial, he should have been allowed to state names of people who had given him this information.
    2. Criminal law <§=3390 — Defendant not bound by undisclosed motives of another party.
    Defendant in a criminal prosecution will not be bound by undisclosed motives and purposes of another which might offer a defensive theory.
    3. Criminal law <&wkey;4l9>, 420(3) — Statements by third party that defendant would kill witness held hearsay.
    ' Testimony of witness in prosecution for selling intoxicating liquor that he left town after purchasing liquor from defendant because another witness had told him defendant would kill him held inadmissible as hearsay, where it is not shown that defendant knew of statements, nor that such evidence was admitted to impeach other witness.
    4. Witnesses <§=3345(1) — Witness cannot be impeached by proof of other crime not involving moral turpitude.
    A defendant in criminal prosecution, or any other witness, cannot be legally impeached by proof that he was arrested for, charged with, or convicted of a misdemeanor that does not involve moral turpitude.
    5. Witnesses <§=>337(6), 345(2) — Defendant or any other witness cannot be impeached by proof of unlawfully carrying arms.
    Defendant in criminal prosecution, or any other witness, cannot be legally impeached by proof that he was arrested for, charged with, or convicted of misdemeanor of unlawfully carrying arms, since such offense does not impute moral turpitude.
    6. Criminal law <&wkey;377 — Witness cannot state desire as to effect of testimony merely because he was not unfriendly to nonmembers of l<Gan.
    Where witness had testified to defendant’s good reputation, state could not require him to state whether he desired to leave any impression concerning guilt of accused merely because he had indicated he was not unfriendly to person who did not belong to Klan.
    7. Criminal law <&wkey;377 — Improper for witness to state his desire as to effect of testimony on jury.
    It was improper to recall witness, who had testified to defendant’s good reputation, and ask if it was his desire to leave any impression on jury as to whether he believed defendant guilty, because jury were exclusive judges of facts proved, credibility of witnesses, and weight of testimony.
    Commissioners’ Decision.
    Appeal from District Court, Bee County; T. M. Cox, Judge.
    Sam Rees was convicted of selling' intoxicating liquor, and he appeals.
    Reversed and remanded.
    B. D. Tarlton, of Corpus Ohristi, for appellant.
    Sid B. Malone, Dist. Atty., of Beeville. and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convifcted in the district court of Bee county for the offense of selling intoxicating liquor and his punishment assessed at confinement in the penitentiary for a term of one year.

The sale is alleged to have been made to one Yance A. Smith. Bill of exceptions No. 3 shows that, while the witness Yance A. Smith was on the stand, and after he had testified in behalf of the state and was being cross-examined by the appellant, the witness stated that a number of people had told him that the appellant was a very bad man, and that the defendant’s attorney could get that information from people up and down the street, whereupon the appellant’s counsel asked the witness who the people were who had told him that the defendant was a bad man, and to-which question the state objected for various reasons, and which objection by the state was sustained by. the court. The court undertakes to qualify this bill by attaching thereto the questions and answers of this witness covering some three or four pages. The summary of the court’s qualification seems to be to the effect that the witness did not state as set forth in said bill that Rees was a bad man, but did state that counsel for the defendant could find out from people up and down the street that Sam Rees was a “bad egg.” We think the qualification attached to the bill in no wise detracts from the force of the bill as presented by the appellant. We see no reason’ why the witness should not have been permitted to state the names of the people who had given him this information. It is true that the matter was immaterial and ought not to have been gone into, but, on the other hand, the witness had Volunteered this information in response to counsel for the appellant’s questions about other matters, and, having brought the matter before the jury, it was certainly the appellant’s right to break the force of it if he was able to do so by showing that the witness could not name any persons who had given him any such information. It is very clear to our minds that, in sustaining the state’s objection, the court unduly restricted a proper and legitimate cross-examination of this witness.

By bill of exception No. 4, objection is preserved to the court’s action in permitting the state to ask the witness Smith what prompted him to leave Beeville the day following the day he- bought this liquor. While this bill is not in a condition to warrant a reversal of the case on account of the matter complained of, yet we may observe in passing that it is a well-settled rule in this state that an appellant will not be bound by the undisclosed motives and purposes of another party which might affect a defensive theory.

By bill of exceptions No. 6, complaint is made at the court’s action in permitting the witness Smith to testify over the objection of the appellant that, on the day following the day that he testified he bought whisky from Rees, that he left town because he was seared, and because Coots McKinney told him that he had better leave town; that his life was not worth a dime in this man’s town; and that said McKinney told him that bunch would kill him if he did not leave town, and that he had better get out and not come back. The court qualifies this bill by stating that, prior to the proceedings set forth in this bill, on cross-examination, the witness Smith, in response to questions by counsel for appellant, had testified that after the night of the occasion in question he left town, going- to San Antonio, and thence to Earedo, and thence crossing the river into Mexico, thence to Earedo, where he was arrested for being drunk, and, in response to the question, “Didn’t the officer who arrested you tell you that you were being arrested for rape?” the witness replied in the negative, and stated that the day after his arrest the sheriff at Laredo told him that he was arrested for rape, and that he was kept in jail at Laredo until Sheriff Malone came and brought him back to Beeville. The court further qualifies the bill by saying:

“The Coots McKinney referred to in the defendant’s said foregoing bill of exception was a witness for the defendant in this case, and testified in- behalf of the defendant on this trial.”

This testimony was hearsay. There is no suggestion in the court’s qualification of the bill, or anywhere else in the record, that the appellant knew anything about or was a party to the conversation between McKinney and the witness Smith, and there is no suggestion in the court’s qualification of the bill that it was offered on the theory of attempting to impeach the witness McKinney. Under these circumstances, we think it clear that the matter presents reversible error. Nader v. State, 86 Tex. Cr. R. 424, 219 S. W. 474.

Bill of exceptions No. 8 complains at the court's action in permitting the district attorney to interrogate the defendant as to what was the nature of his defense in a pistol case for which he had been tried at a prior time. It is not clear to our minds that the testimony concerning the carrying of a pistol was admissible at all. It is well settled in this state that a defendant, or any other witness, cannot be legally impeached by proof that he was arrested for or charged with or convicted of a misdemeanor that does not involve moral turpitude. Branch’s P. C. p. 102. It is also well settled that a defendant or any other witness cannot be legally impeached by proof that he was arrested for or charged with or convicted for the misdemeanor of unlawfully carrying arms; it not being a misdemeanor imputing moral turpitude. Brittain v. State, 36 Tex. Cr. R. 411, 37 S. W. 758; Bain v. State, 38 Tex. Cr. R. 635, 44 S. W. 518; Caldwell v. State (Tex. Cr. App.) 106 S. W. 343. We suggest, therefore, that on another trial of the case the question as to whether or not the appellant had heretofore been convicted of carrying a pistol should be eliminated from this record.

Bill of exceptions No. 12 complains at the action of the court in permitting the district attorney to recall J. T. Ballard, a witness for the defendant who had given testimony favorable to the defendant’s good reputation, and to ask Ballard the following question:

“Mr. Ballard, when you were on the stand yesterday evening and testifying, was it your desire to leave any impression Concerning whether you thought the defendant in this particular case either guilty or innocent?”

To which question the witness answered:

“That it was not his desire to convey any impression as to whether he thought the defendant in this particular ease either guilty or innocent.”

The court undertakes to qualify this hill by stating that, after the witness had testified to the good character of the defendant, and after he had been cross-examined by the state, that on redirect examination, in response to a question from counsel for. the defendant, the witness had stated that his attitude was simply to do justice as a witness, and that he would not prosecute anybody because they did not belong to the Klan. Just how this explanation of the court explains or offers an excuse for the admission of the testimony complained of is not manifest to us. Simply because the witness had indicated that he was not unfriendly to a person who did not belong to the Klan would not in our judgment authorize or justify the state to break the force of the witness’ testimony to the effect that the appellant’s reputation was good by requiring him to testify that he did not desire any leave any impression concerning the guilt or innocence of the defendant in this case. It has always been and is still the law of this state that the jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given to their testimony, and we refuse to give our sanction to the doctrine that a witness may be permitted to testify as to what his desire is concerning the impression that his testimony should make on the jury.

There are many other complaints contained in this record, but, in view of the fact that they may not occur on another trial of the case, a discussion of them is deemed unnecessary.

For the errors above discussed, it is our opinion that the judgment should be reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On State’s Motion for Rehearing.

BERRY, J.

The state has filed a very able motion for rehearing in this case in which complaint is made at the action of this court in reversing this case, same challenging each conclusion reached on which a reversal was based. Same has had our very careful consideration, and we find ourselves unable to agree with the state’s contention.

In addition to the reasons stated in the original opinion as to why the case should be reversed, it is proper to say that the question decided in the ease of Antonio Juarez (No. 8959) 277 S. W. 1091, decided by this court on November 25, 1925. is raised in practically the same form in this ease; and under the authority of the Juarez Case we hold that the learned trial court was in error in sustaining the state’s exceptions to the defendant’s plea in abatement and motion to quash the indictment.

The state’s motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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