
    OAKLEY v. STATE.
    (No. 11155.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    1. Witnesses <⅜=>337(6) — Proof that defendant, charged with car/ying pistol, was under indictment for assault with pistol, held erroneously admitted for impeachment.
    In prosecution for carrying a pistol, question to defendant whether he was not then under indictment for aggravated assault for hitting prosecuting witness on night in question with pistol he had that night, should have been excluded, as offense named in indictment inquired .about did not involve moral turpitude, and could not form basis of any impeachment.
    2. Criminal law <©=>369 (I) — Proof that defendant, charged with carrying pistol, was under indictment for assault with pistol, held error as presenting grand jury’s opinion of defendant’s guilt.
    In prosecution for carrying pistol, admission of proof that defendant was then under indictment for aggravated assault on prosecuting witness with pistol on night in question held reversible error, as presenting to jury fact that, in opinion of grand jury, defendant had carried a pistol on night in question.
    Appeal from Harris County Court at Daw; Ben E. Wilson, Judge.
    Glenn Oakley was convicted of carrying a pistol, and he appeals.
    Reversed and remanded.
    Heidingsfelder, Kahn & Branch, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for carrying a pistol; punishment, 30 days in the county jail.

There seems no question from the state’s testimony but that appellant had the pistol on the occasion in question. The state witnesses testify positively to that fact. Appellant and another man testified equally as positively that appellant did not have a pistol on said occasion.

There are two bills of exception in the record. In our opinion the second of said bills manifests an error for which the case must be reversed. Appellant took the witness stand in his own behalf and denied having the pistol in question. Over objection, he was compelled to answer a question propounded by the state’s attorney, who asked him if he was not) then under indictment for aggravated assault for hitting the prosecuting witness on the night in question with the pistol he had that night. It is stated in the bill that the purpose of said question was to impeach appellant as a witness. Appellant objected to the question on the gfound that the offense named in the indictment inquired about was neither a felony nor a misdemean- or which imputed moral turpitude, and proof that he was so charged could not form the basis of any impeachment, and for the ■ further reason that the question would be getting before the court the fact that in the opinion of a. grand jury appellant had carried a pistol on the night in question. We think the objection well taken. The prosecution in the instant case was upon complaint and information. Proof of the fact that appellant was under indictment for an aggravated assault alleged to have been committed with the pistol which he denied having on the night in question would unquestionably bring before the trial court in this ease the fact that a grand jury, upon an investigation of the matter, had concluded that the accused had made an assault on the night in question with a pistol. That twelve grand jurors believed that appellant had and used a pistoDon such occasion might have affected the verdict herein. The opinion of the grand jury upon the facts before it should not have been put in evidence in this case. Nor do we believe the fact of being indicted for an aggravated assault lite the one in the instant case provable for purposes of impeachment. Hardin v. State, 57 Tex. Cr. R. 401, 123 S. W. 613.

The judgment will be reversed, and the cause remanded. 
      (gssTTor other oases see same topic and KBY-NU1ÍBER in all Key-Numbered Digests and Indexes
     