
    ELLIS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.)
    1. Jury (§ 97) — Talesmen—Examination-Credence to Testimony.
    It was not error for the court to refuse to permit defendant in a prosecution for violating the prohibitory law to examine jurors on their voir dire as to whether they would give the same weight and credence to the testimony of a witness employed in the sheriff’s department as they would if he were not in such employment, as tending to commit the juror on the question of credibility before the witness had testified.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 431-433, 435-437; Dec. Dig. § 97.]
    
      2. Jury (§ 97) — Qualification—Examination of Jurors.
    Neither side may test jurors by showing that they would or would not give credence to the testimony of any witness for either side.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 431-433, 435-437; Dec. Dig. § 97.]
    3.' Cbiminal Law (§ 1166%) — Prejudice-Challenge to Jurors.
    Accused was not prejudiced by the overruling of a challenge to a juror for disqualification, where the juror was challenged peremptorily.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114r-3123; Dec. Dig. § 1166%.]
    4. Jury (§ 72) — Selection—Talesmen.
    Where the court ordered the summoning of talesmen to complete a jury, it should have sustained defendant’s motion to instruct the clerk to place all the names on separate slips of paper as near the same size and appearance as might be, place them in a receptacle, and shuffle them, after which each slip should be drawn by the clerk, and the name placed on the jury list in the order in which they were drawn: such being the method prescribed by Code Or. Proc. 1911, arts. 702, 703, 713.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 333-347; Dec. Dig. § 72.]
    5. Criminal Law (§ 1166%) — Appeal — Prejudice — Drawing Talesmen.
    That the court failed to pursue the method of drawing talesmen prescribed by Code Cr. Proc. 1911, arts. 702, 703, 713, was not ground for reversal of a conviction, where it was not shown that any objectionable juror or one who was not fair and impartial was forced on accused thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3111 — 3123; Dec. Dig. § 1166%.]
    6. Criminal Law (§ 1091) — Appeal—Bill op Exceptions — Reception op Evidence.
    A bill of exceptions to the overruling of an objection to a leading question is insufficient to show error, where it fails to show that any answer was given to the question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    7. Witnesses (§ 393) — Impeachment—Testimony in Different Litigation.
    A witness may not be impeached by showing inconsistent testimony given in another case having no connection with the issue on trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.]
    8. Witnesses (§ 345) — Impeachment—Pri- or Indictment.
    A witness may be impeached by showing that he has been indicted, or is then under indictment on a felony charge.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dee. Dig. § 345.]
    9. Criminal Law (§ 814) — Trial—Bequest to Charge — Issues.
    It is not error to refuse a request to charge on an issue not raised by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    10. Criminal Law (§ 830) — Trial —Evidence — Limitation.
    Where accused objected to the introduction of certain evidence offered for impeachment, and, after its admission, only requested an instruction that the evidence did not impeach the witness, and that the jury could not consider it for that or any other purpose, he could not object that the court failed to limit the evidence to impeachment only.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. § 830.]
    11. Criminal Law (§ 673) — Trial — Instructions — Limitation op Evidence.
    Where testimony could not be legitimately or rationally used for any other purpose, it is not error to refuse to limit it to that purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    12. Criminal Law (§ 775) — Instructions— Alibi.
    Where accused relied on alibi, the court properly charged that such defense meant that accused was at another and different place from that at which the offense was committed, and therefore could not have been the person who committed it, and that, if the evidence raised a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission, he should be found not guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. § 775.]
    13. Criminal Law (§ 1091) — Appeal—Bill op Exceptions — Argument op District Attorney.
    Where a bill of exceptions alleging error in a remark of the district attorney in his closing argument did not show the attitude of the case in such a way as to indicate whether the language complained of could have injuriously affected accused, and no written charge was requested that the remarks be not considered, it did not show error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Will Ellis was convictedl of unlawfully selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    J. A. Carlisle and W. I. Busby, both of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Eep’r Indexes
    
    
      
      For otner cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PKENDERGAST, J.

Appellant appeals from a conviction for unlawfully selling intoxicating liquor in prohibition territory with the lowest penalty — one year’s confinement in the penitentiary. The evidence is amply sufficient to sustain the ^erdiet.

By bill appellant complains that in examining the jurors on their voir dire the court refused to permit him to ask them this question: “Should it develop in the progress of this case that the state’s witness Charles Koethe is in the employment of the sheriff’s department, would you give the same weight and credence to the testimony of said witness, as were he not in such employment?” The bill states the purpose of this question was to ascertain if the prospective jurors would be prejudiced against or biased in favor of said state’s witness because of such employment. The court in allowing the bill qualified it by stating lie refused to permit tbe jurors to answer said question “because it tended to commit them on tbe question of wbat they thought of the credibility of the witness before he had testified.” We have given the substance in full of the bill. It does not disclose that said witness was in the employ of the sheriff’s department, or if so in what capacity, or for what purpose. As qualified by the court, the bill presents no error.

Even if not qualified by the court, certainly neither side should be permitted to test jurors by showing that they would or would not give credence to the testimony of any witness for either side.

By another bill appellant complains that the court should have sustained his peremptory challenge to the juror Berkley because he showed that he had formed an opinion as to the guilt or innocence of appellant. To take the whole bill, appellant’s claim is not supported but the juror is shown to be qualified.- Even if his challenge should have been sustained, the bill clearly shows that the juror was then challenged peremptorily by appellant, and did not sit in the case, and no injury whatever is shown to appellant by his bill. Duke v. State, 61 Tex. Or. R. 442, 134 S. W. 705; Mays v. State, 50 Tex. Or. R. 170, 96 S. W. 329.

By another bill appellant shows that •in making up the jury by challenges from both sides there were only eight accepted jurors, whereupon the court ordered tales-men summoned, which was done. When these talesmen were brought before the court, appellant presented his written motion to instruct the clerk to place all names of these talesmen on separate slips of paper as near the same size and appearance as may be, place them in a box or other receptacle and shuffle them, after which each slip to be drawn by the clerk, and the name thus drawn placed upon the jury list in the order in which they were drawn, as directed by statute. The court refused this motion to which appellant excepted. This is the whole, in substance, of the motion and bill. Unquestionably the court should have granted this motion as the procedure clearly prescribed by the statute directs it. Articles 713, 702, and 703 C. O. P.

But, as this was- not done, we look to the bill to see if any injury whatever occurred to appellant by this action of the court, or if any objectionable juror, or any juror who was not fair and impartial, was thus forced upon him. The bill nowhere and in no way shows any injury whatever to him by reason of this error of the court. This being the case, the error would not justify this court to reverse. 'Duke v. State and Mays v. State, supra.

Appellant’s next bill complains that the court permitted the state to ask the witness Koethe a leading question. The bill does not show that any answer was given, and is wholly insufficient to show any error. Carter v. State, 59 Tex. Or. R. 73, 127 S. W. 215.

By another bill appellant complains that the court would not permit him to ask said witness Koethe what he swore in another ease, with the view of impeaching him. What he was asked that he swore in the other case had no connection whátever with this case, or any testimony of the witness in this case. The bill shows the court specifically told appellant that, if he proposed to impeach the witness by showing he made different statements to what he makes now about this ease on trial, he would permit that, but he would not permit the testimony in the other case. No error is shown by this bill. It is unquestionably, the law that no witnes^ can be impeached on immaterial matters and about something that has no connection with the case on trial.

It is always permissible in this state to impeach a witness by showing that he has been indicted or is then under indictment on a felony charge. There was no error in permitting appellant’s witness Dunaway to be thus impeached in this case, and it would have been improper for the court to have given appellant’s special charge to entirely disregard and not consider such impeachment as affecting the credibility of said witness.

As the evidence did not raise the question that appellant acted as the agent of said witness Koethe in procuring whisky for him, but showed a specific and direct sal^ and delivery by appellant to the witness, the court did not err in submitting the question of agency, to the jury, nor did it err on that account in not charging that the question of alibi was thereby not affected, even if the questions were so raised as to require this court to consider them.

Appellant next complains that the court failed to charge limiting the fact that his witness Dunaway had been indicted for a felony, to the purpose of impeachment only. He asked no charge on the subject. The matter is shown to be this way: He objected to the state in its cross-examination of his witness Dunaway, proving by Dun-away that he himself had been indicted for selling intoxicating liquors, which was a felony, and that the indictment was pending in that court, because said testimony could not be introduced for the purpose of impeaching him. The court permitted the testimony for that purpose, and overruled his objections. He then requested a charge telling the jury that such testimony did not impeach his witness, and that they would not consider it for that or any other purpose. Then he now complains that if he is mistaken in all that, and the testimony was admissible, the court ought to have limited its effect to impeachment only.

“When testimony could not be legitimately or rationally used for any other purpose, it is not error to refuse to limit same for that purpose.” Sue v. State, 52 Tex. Cr. R. 129, 105 S. W. 808. This is the unquestioned rule in this state, specifically so held in Brown v. State, 24 Tex. App. 170, 5 S. W. 685, and is so laid down by Branch’s Crim. Law, subdiv. 3, § 873, p. 555; and section 367, under which sections many other cases to the same effect are collated and cited.

The evidence called for, and the court gave, a correct charge on alibi, and committed no error in the use of the words, “that if the offense was committed as alleged,” in the charge on alibi, as follows: “(4) Among other defenses set up by the defendant is an alibi; that is, that if the offense was committed, as alleged, then the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed, and therefore was not and could not have been the person who committed the same. Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, you will find the defendant not guilty.”

No reversible error is shown by appellant’s last bill of exceptions complaining of a remark by the district attorney in his closing argument. The bill is ■ meager, does not show the attitude of the ease in such a way as to show whether or not the language by the district attorney complained of could have in any way injuriously affected appellant. No written charge was requested that his remarks be not considered. The bill shows no error. Clayton v. State, 149 S. W. 123, and authorities therein cited.

The judgment is affirmed.  