
    BAILEY v. STATE.
    No. 13518.
    Court of Criminal Appeals of Texas.
    May 21, 1930.
    E5. A. Wallace, of Cameron, for appellant.
    A. J. Lewis, Co. Atty., of Cameron, and A. A. Dawson, State’s Atty.,. of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for life.

Appellant shot and killed his wife. It was undisputed that deceased was in bed at the time she was killed, and that appellant fired the shot from outside the house. The parties had had previous difficulties. Insanity was the sole/ defense.

Appellant’s witness Monroe Edwards had been convicted of a feiony in the district court of Milam county on the 4th of October, 1924. The¡ judgment of conviction was affirmed by this court on the 10th day of June, 1925, which was prior to the taking effect of chapter 27 of the Acts of the¡ Thirty-Ninth Legislature, 1925. Upon objection by the state, the witness was not permitted to testify. A conditional pardon by Governor Miriam A. Ferguson granted on the 20th day of January, 1926, was produced. We held in Alexander v. State, 103 Tex. Cr. R. 620, 281 S. W. 852, that the provisions of chapter 27 of the Acts of the Thirty-Ninth Legislature had the effect of rendering an unpardoned convict competent to testify, provided he was not incarcerated in the penitentiary at the time of the trial. In Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978, we held that said act did not have the effect of rendering a convict competent to testify in ease the disability had attached prior to the taking effect of said act. The conditional pardon did not have the effect of rendering the witness competent to testify. McGee v. State, 29 Tex. App. 596, 16 S. W. 422; Dudley v. State, 24 Tex. App. 163, 5 S. W. 649; Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395. Inasmuch as the witness had been finally convicted of a felony prior-to the taking effect of the act in question, he was not competent to testify.

The judgment is affirmed.

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 court.  