
    (86 Tex. Cr. R. 262)
    GORDON v. STATE.
    (No. 5585.)
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1919.)
    1. Criminal law <§=31159(6)—Setting aside VERDICT BASED ON CIRCUMSTANTIAL EVIDENCE.
    The case being one of circumstantial evidence, and the jury having found against defendant, the court on appeal will not set aside the verdict based on conflicting evidence, though alibi was strongly proven.
    2. Witnesses <@=350 — Impeachment of defendant BY CROSS-EXAMINATION AS TO PRIOR CONVICTION.
    Where defendant testified in his own behalf, the state on cross-examination was authorized to show his previous conviction and suspended sentence as a means of affecting his credibility, though defendant had not placed his reputation before the jury as being an honest, law-abiding citizen.
    3. Criminal law <@=722½—Argument referring TO PRIOR CONVICTION PROPER.
    Argument of prosecuting officer, to the effect that defendant’s former conviction and suspended sentence offered strong reasons why he might falsify his testimony, held justifiable.
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Langston Gordon was convicted of horse theft, and he appeals.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of horse theft; his punishment being assessed at four years’ confinement in the penitentiary.

The case is one of circumstantial evidence. The horse was "taken at night from its accustomed place, of being kept, and found some miles away the next morning in the town of Crockett. Appellant was identified by two or three parties in the torra of Crockett, in possession of the animal trying to sell or trade it. The witnesses had never seen appellant prior to this occasion. They described him as wearing a brown coat and a pair of overalls, and also wearing a cap,, and that he had gold-filled teeth on both sides of his mouth. Appellant, however, offered testimony to show that he did not have gold-filled teeth on both sides of his mouth, but did have one tooth with a gold crown on it on one side of his mouth. Appellant proved an alibi, which placed him at a sawmill, where he was working the entire night of the theft if the animal and during the entire day he is said to have been in Crockett, some miles distant. The alibi seems to be pretty strongly proved. However, the jury found against his contention. Under such circumstances this court would hardly feel justified in setting aside the verdict. The writer has serious doubt of the guilt of the appellant, under this record, but hardly feels justified in setting aside the verdict on this conflict of testimony. This much has been said because of the urgency of appellant as to the insufficiency of the facts to justify the conviction. Quite a number of witnesses testified in detail as to the movements of appellant, and as to facts and circumstances which, if true, preclude the idea that he was the party who either took the animal or was in possession of it in the town of Crockett.

Appellant took the witness stand in his own behalf, and testified as practically did the other witnesses who located him at the sawmill during the night of the theft and the following day. On cross-examination he was asked by the state if he had not been previously convicted and awarded a suspended sentence. Over objection he was permitted to state that he had been convicted and awarded a suspended sentence. When this occurred is not shown. The court overruled the objections, and permitted the testimony on the theory of impeachment and for the purpose of affecting his credibility as a witness. It is true appellant had not placed his reputation before the jury as to being an honest, law-abiding citizen. However, we are of opinion under the authorities that the state was authorized to show this previous conviction and suspended sentence as a means of affecting his credibility before the jury. The authorities sustain this ruling of the court.

There is another bill of exceptions reserved to the argument of the prosecuting officer, who urged before the jury that the former conviction and suspended sentence afforded strong reasons why appellant might falsify his testimony; his contention being that, if he was convicted in the pending case, this would operate to set aside the suspended sentence and incarcerate him in the penitentiary in the case in which he was awarded a suspended sentence. We are of opinion that the argument of the district attorney was justified, and there was no error in the action of the court permitting such argument before the jury.

The case is before us without a brief for the appellant, but these are the questions presented by the record for revision. In view of what has been said we do not feel justified in reversing the judgment. It will therefore be affirmed. 
      <g=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     