
    BRYAN v. STATE.
    (No. 8131.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    1. Criminal law <@=>1172(9) — Error in charge submitting greater penalty than allowed by statute necessitates reversal.
    Error in a charge submitting a greater penalty for misdemeanor gaming than that allowed by Pen. Code, art. 648, followed by assessment of larger punishment than is permitted thereby, necessitates reversal.
    2. Criminal law <@=>622(2) — Refusal of severance on joint affidavit by defendants held error.
    Refusal to grant a motion for severance on joint affidavits in the language of the statute by defendants separately indicted for offenses growing out of the same transaction, on the ground that the evidence was not sufficient to secure conviction of one of them and that his testimony was material on behalf of the other, held) error.
    3. Criminal law <@=>l 134(3) — Matter not likely to occur on retrial not discussefd.
    Alleged error in holding a juror qualified will not be discussed, where the judgment is reversed and the cause remanded on another ground, as it wih not likely occur on another trial.
    4. Jury <@=>147 — Error for court to appoint foreman.
    The court’s action in appointing a foreman of the jury held erroneous; Code Cr. Proo. art. 752, requiring that the jury elect their own foreman.
    5. Criminal law <@=>1166,</a(6) — No reversal for court’s error in appointing foreman of jury unless injury resulted.
    The appellate court Will not likely reverse a case for the court’s error in appointing a foreman of the jury, unless it is made to appear that injury resulted.
    6. Witnesses <@=>321 — State’s witness failing to remember facts favorable to state may not be impeached by proof of prior statements of such facts. _ '
    A state’s witness, who merely fails to remember facts favprable to the- state’s case, pay not be impeached, under Code Cr. Proc.-art. 815, by proof of statements theretofore made by him of such facts, unless he purposely misled counsel.
    7. Witnesses <@=>321 — Admission of evidence that state’s witness was fined at grand jury’s instance held error.
    It was error to permit the state to prove that one of its witnesses, who failed to remember pertinent facts when before the grand jury, was fined therefor at the instance of such body, and to introduce a list of names of par.ties who paid the fine.
    8. Witnesses <@=345(2) — Proof that defense witnesses had been indicted for misdemeanor gaming held incompetent.
    In a prosecution under Pen. Codq, art. 548, for misdemeanor gaming, proof that defense witnesses had been indicted for such gaming is inadmissible; the offense not involving moral turpitude.
    9. Criminal law <@=>723(1) — Reference in state’s argument to subscription list to pay defendant’s fine held improper.
    A statement in the state’s closing argument that there would be a subscription list going in 24 hours to pay defendant’s fine if he was found guilty held improper.
    '¿g^For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes ■
    Appeal from Ochiltree County Court; J. M. Grigsby, Judge.
    Gus Bryan was convicted of misdemeanor gaming, and appeals.
    Reversed and remanded.
    Hoover, Hoover & Willis, of Canadian, and J. W. Payne and Allen & Allen, all of Perry-ton, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Ochiltree county of misdemeanor gaming, and his punishment fixed at a fine of $50.

The indictment was for a violation of article 548 of our Penal Code, which forbids games with cards at public places, punishment for which is fixed by statute at a fine of not less than $10 nor more than $25. In his charge to the jury the learned trial judge stated the penalty to be not less than $10 nor more than $50, and the punishment was fixed in the verdict at a fine of $50. The verdict and judgment affixed a penalty greater than that allowed by law, and under the uniform holding of this court the error of the charge in submitting a greater penalty than that allowed by statute followed by the assessment of a larger punishment than was permitted by the law, necessitates a reversal. Holland v. State (Tex. Cr. App.) 29 S. W. 786; Steele v. State, 46 Tex. Cr. R. 332, 81 S. W. 962; Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 957, 3 Ann. Cas. 867; Leal v. State, 46 Tex. Cr. R. 336, 81 S. W. 961.

Appellant may be tried again, and we notice some other matters raised in the record. One Randolph and appellant made a joint affidavit which is filed herein, stating in the language of the statute that they were separately indicted for offenses growing out of the same transaction and asking- that a severance be ordered, and that Randolph be first placed upon trial, averring that the evidence was not sufficient to secure his conviction and that his testimony was material on behalf of appellant. The application followed the statute. The bill complaining of this matter is without qualification. The motion for severance should have been, granted.

There is a lengthy bill complaining of the overruling of objections to a certain juror and the court’s action holding him qualified. The matter will not be discussed, inasmuch as it will not likely occur upon another trial; but in this connection there is another bill which sets up that after the court had finished reading his charge to the jury he handed same together with the papers in the ease to this particular juror claimed to be objectionable, and in terms then appointed him as foreman of the jury, and he acted in this capacity. Article 752, C. C. -3?., provides that the jury shall elect their own foreman. The action of the learned trial judge in appointing, a foreman was erroneous. We would noti likely reverse a ease for an error such as' this unless it was in some way made to appear that injury had resulted, but attention is called to the fact that it is a violation of the statute.

A state witness, who merely fails to remember facts sought to be elicited from him favorable to the state’s case, does not thereby place himself in an attitude to be impeached by proof of contradictory statements theretofore made by him of such favorable facts, unless he has purposely misled counsel putting him on the stand. Complaint is made here of questions asked witnesses whose only default was failure to remember favorable facts, and of the' further proposition that members of the grand jury were permitted to testify for the state to testimony given by said witnesses before the grand jury of the: facts that they there stated. This procedure seems to be controlled by article 815, C. C. P., under which it is uniformly held that, unless the witness state something in some way hurtful to the side of the case which places him on the witness stand, he cannot be by that side impeached.

It was error to permit the state to prove that one of its witnesses who failed to remember pertinent facts when before the grand jury was, at the instance of said body, fined for his failure to remember. Also it was erroneous to introduce the list of names of the parties who made up money" and paid his fine on such occasion.

It was error to allow the state- to introduce proof that defense witnesses had been indicted for misdemeanor gaming. Mr. Branch collates in section 169 of his annotated P. C. many authorities holding such testimony incompetent upon the ground that the offense.is not one involving moral turpitude. A statement in the closing argument for the state that there would be a subscription list going in 24 hours to pay this man’s fine if, he was found guilty, was improper.

Por the errors mentioned, the judgment of the trial court will be reversed, and the cause remanded.  