
    PARKER v. STATE.
    (No. 4754.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    1. Criminal Law <§==>721(3) — Conduct of Counsel — Comments on Defendant’s Failure to Testify.
    A statement, by the state’s attorney to the jury, that “defendant is guilty as shown by circumstances so strong that he could not face you and give you a satisfactory explanation,” alluding to defendant who had not testified, was in violation of Vernon’s Ann. Code Cr. Proc. 1916, art. 790, providing that defendant’s failure to testify in his own behalf shall not be alluded to or commented on by counsel, and constituted reversible error.
    
      2. Homicide ®=3l09(l) — Evidence—Admissibility.
    A witness in a murder case could testify that deceased was in his employé as a driver of his car and drove it on the night of the homicide, but testimony that he received a particular telephone call and sent the driver in response thereto was inadmissible.
    3. Witnesses <s¿>345(2) — Impeachment—Conviction.
    In a murder case any witness may be impeached by showing that he has been convicted or properly indicted for a felony or misdemeanor involving moral turpitude, but a charge of aggravated assault and a conviction of simple assault is inadmissible.
    4. Witnesses <®^>345(1) — Impeachment—Ajr-best.
    Evidence in a murder case that a witness had been in jail or arrested for a matter not involving moral turpitude was not admissible in impeachment.
    5. Homicide <S=o169(2) — Evidence—Admissibility.
    In a prosecution for murder where the state proved that on the night of the homicide defendant said that he was going to whip the driver of witness’ car who was the deceased, the state might prove by such witness that deceased was the only driver of any car he had at that time.
    6. Homicide <S^170 — Evidence—Admissibility.
    In a prosecution for murder it was not error to admit testimony that defendant was wearing a hat like the one the witness wore on the night of the homicide, which hat was exhibited to the jury.
    Appeal from District Court, Milam County; John Watson, Judge,
    Tom Parker was convicted of murder, and he appeals.
    Reversed and remanded.
    Lyles & Lyles and Chambers & Wallace, all of Cameron, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appeals from a conviction for murder.

The evidence was wholly circumstantial to establish his guilt, lie did not testify.

Appellant has this bill which, after the proper heading, shows:

“That on the trial of the above styled and numbered cause, that after the introduction of the evidence had been closed by both the state and the defendant, and after the charge of the court had been read to the jury, and while the county attorney, the Hon. Roy Baskin, was opening the case for the state, that he did say to the jury, and use the following language substantially: ‘Gentlemen of the jury, the defendant is guilty as shown by circumstances so strong that he could not face you and give a satisfactory explanation.’
“And be it further remembered that the defendant had not testified in the case, or offered to testify, and that immediately upon the making of said statement by the county attorney the defendant’s counsel did thereupon except to the same, as a direct reference to the fact that the defendant had not testified in the case and that the language used was a direct charge that the reason that the defendant did not take the stand and testify was because he could not face the jury with a satisfactory explanation, and assumed from such fact that the reason the defendant had not taken the stand was -that he had committed the' homicide, and that said ' conduct and statement by the county attorney, used under the circumstances, was a direct violation of the statute, prohibiting a reference to the fact of the defendant’s failure to testify, was an invasion on the defendant’s rights and was highly prejudicial to the defendant and was irremediable, and the defendant here now tenders this his bill of exceptions to the argument and conduct of the county attorney, as aforesaid, and asks' that the same be examined, approved and ordered filed as a part of the record in this case, and which is accordingly done.”

This bill is approved by the judge without an explanation or qualification. The bill, as seen, does not show that the court made any ruling whatever. That the remarks of the county attorney were a direct allusion to the appellant’s failure to testify, and, while brief, that it was a comment on that fact to the jury, cannot be doubted. It was in direct violation of the statute (article 790, O. C. P.) and the many decisions of this court holding that such action by the county attorney presents reversible error. See decisions noted in Vernon’s Ann. Orim. Stats, under said article.

Appellant has another bill objecting to the testimony of Mr. Wilkerson to the effect that some 20 minutes before deceased was killed he received a ’phone call from “100, ” which was the whorehouse, and that he sent deceased, who was driving his car that night, down there in response to said call. When this testimony was offered and appellant objected thereto, the county attorney said that he would afterwards introduce testimony showing the connection and relevancy of such testimony. The bill shows that he did not later do that at all. The witness could testS fy properly that deceased was in his employ as a driver of his car and drove it that night, but that he received this particular call, and sent him to that particular place in response-thereto, might not be admissible unless it was shown to have had some bearing on'-some-fact in the case. How it could have been injurious to appellant is not shown. It is perhaps harmless. But, if objected to on another trial, unless in some way connected up so as to show its materiality it should not be admitted.

Any witness can be impeached by Showing, when not too remote, that he has been convicted or properly indicted for a felony or a misdemeanor involving moral turpitude ; but no other misdemeanor convictions are admissible for impeachment purposes. These principles are so well established by so many decisions we cannot understand how it could be contended that a charge for aggravated assault and a conviction of simple assault in any other misdemeanor case not involving moral turpitude could be admissible. The court therefore did not err in excluding such testimony in this case, where an attempt was made to introduce such misdemeanor convictions to impeach the state’s witness Adge Robinson. Nor was evidence that he had been in jail or arrested on any such charge admissible.

The state proved that, on the same night deceased was killed, appellant said that he was going to whip the driver of Mr. Wilkerson’s car. He did not call the name of the deceased. It was therefore permissible for the state to prove by Mr. Wilkerson that deceased was the only driver of any car he had at that time.

Nor did the court err in permitting the witness Penn Wolf to testify, in substance, that appellant was wearing' a hat like the one he (the witness) wore the night deceased was killed, and in then procuring his hat and exhibiting it to the jury and testifying that the hat deceased wore that night was something like his “flat top.” This testimony was admissible.

As the case is to be reversed, it is unnecessary to pass on whether the court qrred in overruling his motion for a continuance.

For the error above pointed out, the judgment is reversed, and the case remanded. 
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