
    LINDSEY v. STATE.
    (No. 10977.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    Rehearing Denied Oct. 19, 1927. Appellant’s Application to File Second Motion for Rehearing Denied Nov. 23, 1927.
    1. Criminal law <&wkey;>l09l(ll) — In absence of statement of evidence, bill of exceptions complaining of procedure cannot be appraised, unless bill contains evidence showing error prejudicing appellant’s case.
    In absence of statement of evidence, it is noj; possible to appraise bill of exceptions complaining of procedure, unless bill contains sufficient evidence to make it plain that an error which necessarily prejudiced appellant’s case was committed.
    2. Criminal law <&wkey;>761(ll) — Instruction that witness was accomplice was not erroneous as implying that an offense in which accused was party was committed.
    In prosecution for theft, instruction that witness was an accomplice held not erroneous on ground'that charge implied that an offense had been committed in which accused was party.
    3. Witnesses &wkey;>277(2)— Permitting question whether another had advised accused to lay , crime on another which accused denied, held not error, where court instructed jury to disregard matter. '
    In prosecution for theft, permitting question on accused’s cross-examination whether he had conversation with certain witness in which witness had advised him to refrain from making any statement, and that he might escape punishment by laying offense on another, where accused denied conversation, ’ and court instructed jury to disregard question and all reference to matter, held not error.
    On Motion for Rehearing.
    4. Criminal law <&wkey;=>304('2) — It is common knowledge that bale of “lint cotton” is ordinarily referred to as “bale of cotton.”
    It is matter of common knowledge that bale of “lint cotton” is ordinarily referred to as “bale of cotton.”
    5. Criminal law &wkey;>772(3) — That court, in instructing jury, used words “one bale of cotton described in indictment,” where indictment charged theft of “lint cotton,” held not error.
    In prosecution for theft, that court, in instructing jury, usecf words “one bale of cotton described in indictment,” where theft, according to averment in indictment, was of a bale of “lint cotton,” held not error.
    6. Criminal law <&wkey;>264, 772(3), 858(1) — Practice of reading indictment to jury, having accused plead thereto, and having jury take indictment to jury room, is proper. y
    Practice of reading indictment to jury, haying accused plead thereto, and having jury take indictment to jury room on retirement, is proper.
    7. Witnesses <&wkey;337(5) — Accused taking stand may be asked if he has been charged with offense involving moral turpitude as predicate for impeachment.
    Accused who takes witness stand in his own behalf may be asked if he has not been arrested or charged with felony or some offense involving moral turpitude for purpose of laying predicate for impeachment of accused and to thus affect his credibility as witness.
    8. Criminal law &wkey;3786(6) — Witnesses <&wkey;>337 (6) — Permitting question to accused whether he had been arrested for theft, and instructing jury to disregard evidence when it appeared no charge' had been filed, held not error.
    In prosecution for theft, permitting question to accused testifying in his own behalf, as predicate for impeachment, whether he had been charged with theft of automobile tire, and arrested, and instructing jury to disregard testimony, where it later developed that there was no charge filed against him, held not error.
    
      Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    Harland Lindsey was convicted of theft, and he appeals.
    Affirmed.
    Gordon Simpson, of Tyler, for appellant.
    Sam D. Stinson, State’s Atty.. and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period 'of two years.

A statement of the evidence heard is not before this court. In the absence of such a statement, it is not possible to appraise the bill of exceptions complaining of procedure, unless in the bill there is embraced sufficient evidence to mate it plain that an error which necessarily prejudiced the appellant’s case was committed. The complaint is that the court instructed the jury that the witness Charlie Still was an accomplice. The criticism is that such a charge implies that an offense has been committed in which the accused is a party. This criticism has been held untenable. Torres v. State (Tex. Cr. App.) 55 S. W. 828. The propriety of giving a like charge has been often announced. See Wilkerson v. State (Tex. Cr. App.) 57 S. W. 964; Hatcher v. State, 43 Tex. Cr. R. 240, 65 S. W. 97; Spencer v. State, 52 Tex. Cr. R. 292, 106 S. W. 386; See numerous other cases collated in Branch’s Annotated Texas P. C. § 712. The theft, according to thé averment in the indictment, was of a bale of “lint cotton.” Bill of exceptions No. 2 attacks the charge because the court, in instructing the jury, used the words “one bale of cotton described in the indictment.” We think the complaint is without merit.

In bill of exceptions No. 3 it appears that appellant, while testifying in his own behalf, was asked, as a predicate for impeachment, if he had not been charged with theft of an automobile tire. To this he answered in the affirmative, stating that he was arrested for such an offense. It later developed from his testimony that there was no charge against him filed in court. Upon appellant’s request the jury was instructed to disregard all reference to the theft of an automobile tire. Part of this appears in the qualification to the bill. As qualified the bill reveals no error.

In bill of exceptions No. 4 it appears that, while appellant was under cross-examination] he was asked if he had not had a conversation with witness Thomas, in which Thomas had advised appellant to refrain from making any statement, and that he might escape punishment by laying the offense upon Charlie Still. Appellant denied the conversation, and the court instructed the jury to disregard the question and all reference to the matter. The bill fails to show error. We add in reference to all of the bills that they are not in such condition that, in the absence of knowledge of facts that were before the trial court and jury at the time of passing on the motion for new trial, we are unable to determine that appellant’s case was prejudiced by any of the transactions mentioned.

The judgment will be affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant renews his insistence that, because the indictment charged him with the theft of a bale of lint cotton, and the charge of the court referred to the property alleged to have been taken merely as “a bale of cotton,” this is a variance. We are not able to agree with this proposition. It is a matter of common knowledge that a bale of lint cotton is ordinarily referred to as a bale of cotton. The further fact appears also that in the charge the court specifically referred to a bale of cotton “as described in the indictment.” This is the usual method of directing the jury’s mind to the indictment for a more extended description of the property involved. The indictment is ordinarily read to the jury, the accused pleads thereto, and the indictment is taken'into the jury room upon retirement. We think such practice is entirely proper.

We know of no authority in this state holding it wrong to ask one who is on trial for an offense, and who takes the witness stand in his own behalf, if he has not been arrested and charged with a felony or some offense involving moral turpitude; the purpose being to lay a predicate for the impeachment of the accused, and to thus affect his credibility as a witness. This was done in the instant case, and the accused admitted that he had been arrested and charged with theft. This was entirely correct. Later, upon discovery that following the arrest of the accused for theft no legal charge had been filed against him, the court instructed the jury not to consider the testimony. In this we perceive no error. The court’s action was correct in admitting the testimony in the form same appears in the bill of exceptions, in the first instance, and certainly the court was correct in endeavoring to correct the effect of the admission of this testimony when it was later - developed that no legal charge had been filed. The record does not reflect that any objection was made at the time of the asking of this question of the appellant, based on the proposition that no legal charge followed his arrest. If such objection had been made, it seems entirely probable that this question would have been then investigated, and the objection sustained upon it being shown that following such arrest no charge had been filed.

Being unable to agree with appellant’s contentions, the motion for rehearing will be overruled. 
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