
    JOHNSON v. STATE.
    (No. 4900.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Criminal Law <§=>814(5) — Instructions— Elements of Offense — “Vagrant.”
    Instruction permitting conviction of vagrancy, under Vernon’s Ann. Pen. Code 1916, art. 608e, making it unlawful to solicit orders for intoxicating liquors in prohibition territory, and Pen. Code 1911, art. 635, making one who unlawfully solicits orders for intoxicating liquors a vagrant, in the absence of evidence that the territory in which accused solicited such orders was prohibition territory, was erroneous.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vagrant.]
    2. Criminal Law <§=>77S(5) — Instructions— Form.
    In prosecution for vagrancy, charge to acquit if the jury believes accused not guilty on either count is objectionable, as placing on accused the burden of proving his innocence.
    3. Witnesses <§=>845(1) — Impeachment—Other Offenses.
    It is always permissible to impeach a witness by showing that he has been convicted, when not too remote, of any felony or any misdemeanor involving moral turpitude, but it is not permissible to thus impeach any witness by proving his prosecution or conviction of any other misdemeanor.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Tiff Johnson was convicted of vagrancy, and he appeals.
    Reversed and remanded.
    Dupree & Crenshaw, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DRENDBRGAST, J.

Appellant prosecutes this appeal from a conviction of vagrancy.

Article 606e, 1 Vernon’s Crim. Stats., makes it an offense for any person to solicit orders for any intoxicating liquors in any territory where prohibition is in force. Article 635, P. O., prescribes that any person who unlawfully solicits orders for intoxicating liquors is a vagrant. The complaint and information herein, among other things, in one count, alleged that, on or about September 1, 1917, and thence continuously to the day of the filing of the information, which was on September 13tb, appellant, “did then and there unlawfully solicit orders for intoxicating liquors.” Neither the complaint nor information alleged that prohibition was in force or ever had been in Hill county, where the soliciting was alleged to have been done.

The only law known to ns which makes it unlawful to solicit orders for intoxicating liquors is article 606e, stated above. There was no testimony showing that prohibition was in force in I-Iill county, even if this could have been proven without alleging it. The court by its charge expressly authorizes appellant's 'conviction for unlawfully soliciting orders for intoxicating liquors, without any evidence that prohibition was in force. Appellant objected to Uiis in various ways, and made and saved the point in every particular. The court’s charge, therefore, authorizing appellant’s conviction on this count, was error.

The court’s charge, to the effect that if the jury believed the defendant is not guilty under either count of the indictment, is objectionable, and was properly objected to.. This charge, in the language used, rather places the burdén upon appellant of proving bis. innocence.

It is always permissible to impeach a witness by showing that he has been convicted, when not too remote, of any felony or any misdemeanor involving moral turpitude, but it is not permissible to thus imqpeach any witness by proving his prosecution or conviction of any other misdemeanor. The state was permitted, over appellant’s objection, to prove by him that he had before been convicted for bootlegging. It is always understood that by bootlegging is meant illegally selling intoxicating liquor in prohibition territory. It might, or might not, be a felony in the given territory. Appellant’s bill, objecting to this, does not show whether appellant’s conviction was for a misdemeanor or a felony, and hence we cannot tell from his bill whether this testimony is admissible or not for impeachment.

Reversed and remanded.  