
    COX v. STATE.
    (No. 9557.)
    (Court of Criminal Appeals of Texas.
    Jan. 27, 1926.)
    1. Criminal law <&wkey;369(6) — Evidence of mash poured out near defendant’s residence, and finding of whisky and still on premises, held admissible as connecting defendant with transportation of liquor and in rebuttal.
    In prosecution for unlawful transportation of liquor, evidence that mash was poured out near defendant’s residence and whisky was found in an outhouse, and finding of a still showing manufacture of whisky on premises, was not prejudicial as showing extraneous crimes, but was admissible as circumstances tending to connect defendant with offense for which he was tried, and as rebuttal of defense that whisky found did not belong to him, that he had not been drinking for quite a while, that still was there when he moved in, and that mash was hog feed.
    2. Witnesses <&wkey;277(2) — Cross-examination of defendant as to his being charged with other felonies held not error.
    In prosecution for transportation of liquor, cross-examination of defendant as to whether he had not been charged with other felonies was not erroneous as inquiring into extraneous offenses.
    3. Witnesses <&wkey;>337(5) — A defendant testifying in own behalf may be questioned for impeachment as to being charged with felonies and misdemeanors involving moral turpitude.
    When defendant in a criminal case takes the stand in Ms own behalf, the state may cross-examine him for impeaching purpose® relative to his having been charged with other felonies and misdemeanors involving moral turpitude.
    4. Criminal law <@=w4!9, 420(10), 1169(1) — Evidence by witness that he had been informed that defendant was furnishing liquor to school boys held hearsay and reversible error.
    In prosecution for unlawful transportation of liquor, evidence of a school teacher that it had been reported to him that whisky which his school boys were getting drunk on was coming from section of country in which defendant lived, and that it was furnished by the defendant, was hearsay, and, since it bore on a vital •issue of the case, its admission was reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    Drank Cox was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Dallas Ivey, of Center, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the district court of Shelby county for unlawfully transporting intoxicating liquor, and his punishment assessed at two years in the penitentiary.

Briefly stated, it was the contention of the state that, on the night of the alleged offense, the officers, together with the state’s witnesses, observed the appellant, in company with one Ace Cotham, going in the direction of the appellant’s house, and when the presence of the officers was observed by the appellant that he had a quart of corn whisky, which he threw down and broke while the officers and the state’s witnesses were rushing upon them. The appellant denied having any whisky in his possession at the time, and contended that he had gone out, at the instance and request of the said Cotham, to take a drink of whisky belonging to said Cotham, which he had concealed and at the time the officers rushed upon them, but said Cotham was in possession of said whisky, and that they were on their way back to the ¿ppellant’s house for the purpose of getting some water. The record discloses that said Cotham had gone to the premises of the appellant for the purpose of attempting to purchase some whisky from him, and was expecting the officers and parties at the time they made the rush upon them at the place above mentioned. In other words, the record discloses that said Co-tham had an understanding with some of the other parties to go out to appellant’s house at the time in question, and for the purpose of obtaining 'testimony upon which to secure a conviction.

The appellant complains of the action of the court in overruling his motion for a continuance, but the disposition we have made of this case makes it unnecessary to pass upon this question.

Appellant complains of the action of the court in permitting the state to prove, over his objection, that mash was poured out on the ground near the residence of the appellant, and to finding about a quart of corn whisky in an outhouse about 50 or 75 yards, from his residence, and to finding what the state’s witnesses denominated a still, consisting of an iron barrel and other articles,. which the state contended showed that whisky had been manufactured on said premises. The appellant contends that said testimony was offered for the purpose of and tending to show extraneous crimes other than the one for which he was on trial, and was very prejudicial. We fail to find any merit in this contention, and we are of the opinion that the testimony was admissible as a circumstance tending to connect the defendant with the offense for which he was being tried, and also was admissible in rebuttal of the defense offered by him, to the effect that the whisky found in the outhouse did not belong to him, and that he had not been in the habit of drinking whisky for quite a while, and th'e articles found by the state’s witnesses, called a still, was there when he moved there, and what they claimed was mash was for hog feed. Nichols v. State, 97 Tex. Cr. R. 174, 260 S. W. 1050; and for collation of authorities see Branch, Ann. Penal Oode, § 166, p. 98.

Appellant also complains of the action of the court in permitting the state on cross-examination to ask him if he had not been charged with other felonies, because it is contended that same was inquiring into other and separate offenses than the one for which he was on trial; and in support thereof cites Roark v. State (Tex. Cr. App.) 276 S. W. 242. We find no merit in this contention, as this court has always held that when the defendant takes the stand in his own behalf, it is proper for the state on cross-examination to inquire of him relative to having been charged with other felonies and misdemeanors involving moral turpitude, for impeaching purposes. Branch, Ann. Penal Code, § 167. The Roark Oase, supra, is not in point for the reason that the appellant in that case did not testify in his own behalf, and this court held that under the facts of that case the state was not authorized to prove extraneous crimes and offenses.

Appellant further complains of the action of the court in permitting the state, over his objection, to prove by the witness Eain, one of the parties who assisted in the arrest of the appellant, that it had been reported to him that whisky which his school boys were getting drunk on was coming from the section of the country where the appellant lived, and that he was informed the liquor was furnished those boys by the appellant. It appears from the record that said witness was a school teacher, and was having some trouble with his students relative to drinking whisky. Timely objection was made to this testimony when it was offered, on the ground that same was hearsay, and was without proper predicate, and prejudicial to the defendant. The appellant also prepared a special charge and requested the court to instruct the jury not to consider same, and reserved an exception to the closing argument of the district attorney to the jury to the effect that he would'stop the defendant from selling whisky to school boys. Said objections were all overruled by the court, and proper bills taken. We think the court was in error in admitting this testimony, because same was clearly hearsay and was bearing directly on a vital issue in the case, and which will necessitate a reversal of same.

For the reasons above stated, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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 judges. 
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