
    LAGOW v. STATE.
    (No. 4515.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Ceiminal Law <&wkey;304(9) — Witnesses <&wkey; 351 — Judicial Knowledge — Impeachment by Evidence oe Other Oeeenses.
    Since the court cannot judicially know that local option is in force in any county, an election being prerequisite to enforcement of the statute, it is error, in the absence of evidence that local option is in force in a certain county to permit one accused of another offense to be asked whether he has pot within two years been convicted of violating the local option law in such county.
    2. Criminal Law <&wkey;719(l) — Argument of Counsel.
    In the absence of evidence on the proposition, it is error for the district attorney in opening argument to say, “You know the defendant is guilty, because the officers have been ‘chous-ing’ him for the last five or six years for violating the local option laws.”
    Prendergast, J., dissenting.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    S. F. Lagow was convicted of an offense, and he appeals.
    Reversed and remanded.
    Y. W. Holmes and W. W. Kirk, both of Plainview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted under a charge that he conveyed a file to Joe Crockett, who was confined in the jail under a charge of felony and for the purpose and with the intent of aiding Joe Crockett to escape from the jail.

A bill of exceptions'recites that:

“While appellant was on the witness stand, and after testifying in his own behalf, he was asked on cross-examination by state’s counsel, .in the absence of any testimony that local option was in effect in- Hale county, Tex., at the time inquired about, whether or not he had been indicted in the last two years in Hale county for violating the local option laws.’-'

Various and sundry exceptions were reserved to this, among others that there was no evidence to the effect that local option was in effect. This was offered presumably for the purpose of impeaching appellant. This bill is qualified by the judge in the following language:

“The violation of the local option law being a felony in Hale county, the question was permitted as affecting the credibility of the defendant while a witness on the stand, and in the court’s charge said testimony was so limited.”

If the judge desired to testify in the case, he should have been sworn as any other witness in regard to matters of this character. The court cannot judicially know that local option was in effect. This has been so often decided it would seem unnecessary to refer to the authorities. If as a matter of fact the felony statute with reference to local option was in effect in that county, it should have been shown as required by law. That law cannot be put into operation except by special election held for that purpose. The courts do not judicially know that such election h'as been held. It must be proved as required by law. The court’s qualification under the authorities cannot be considered. Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149; Graham v. State, 72 Tex. Cr. R. 9, 160 S. W. 714. If local option was in effect in the county, it could not be used as a matter of impeachment if under the misdemean- or statute, but in no event could the judge take judicial knowledge of the fact that it was in effect either as a misdemeanor or a felony. As this matter is presented, appellant could not be impeached in the manner that the hill indicates.

Another bill recites that the district attorney in his opening argument stated to the jury:

“You know the defendant is guilty, 'because the officers have been ‘chousing’ him for the last five or six years for violating the local option laws.”

Various objections were urged to this matter.

“The court instructed the jury not to consider any statement made by the district attorney concerning the defendant’s being ‘choused’ for violating the local option laws.”

This is the bill of exceptions as copied in the record. The previous bill recited there was no testimony offered on the trial as to the local option law being in effect in that county. This is a case of circumstantial evidence, weak 'and inconclusive in its nature. It is on close lines if not more than doubtful that the evidence is sufficient. The matters complained of in the two bills mentioned may have had the effect of turning the scale against appellant in the minds of the jury. Counsel will not be permitted to state facts in his argument that are not in evidence, and especially if it has a tendency to damage the defendant before the jury.

Eor the reasons indicated, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

I cannot imagine how any one who would read the testimony in this case could even suggest that the evidence of appellant’s guilt was “weak and inconclusive in its nature, and on close lines if not more than doubtful if it is sufficient,” as is stated in the majority opinion. The appellant made no such contention in his motions for a new trial nor otherwise.

The state’s testimony by wholly disinterested witnesses showed that there were some three persons confined in jail, and one or more of them had been so confined for many months, and they all wanted to escape. In some way they had secured a key and some files and were working on the key with these files so that they could make the key fit the lock and thereby escape, when appellant was arrested and placed in jail with them. The files they had were too large to file the key in such a way as to make it fit the lock. This was made known to appellant by them when he was placed in jail. He told them he had a new file just the right size. He was kept in jail just one day and night. As soon as he got out he procured the file he had told them of, and succeeded in getting it to these parties in jail by throwing it at a window so that they could and did reach and get it, therewith to file the key they were working on, make it fit the lock, and thereby open the jail door and escape. In some way the officers learned all this, and by searching the jail found and identified this file appellant had conveyed to them before they succeeded in escaping. There can be no sort of doubt but that the evidence was clearly sufficient to sustain his conviction, and, as stated, he did not contend it was not.

The bill to his being required to answer that he had been indicted for illegally selling intoxicating liquor in Hale county within two years is not correctly stated in the majority opinion. I will copy the whole of it, merely omitting the heading, which gives the number and style of the cause and the term of court. It is:

“Be it remembered that on the trial of the above entitled and numbered cause, while the defendant, S. F. Lagow, was on the witness stand, and after testifying as a witness in his own behalf, he was asked on cross-examination by state’s counsel, in the absence of any testimony that local option was in effect in Halo county, Tex., at the time inquired about, whether or not he had been indicted in the last two years in Hale county for violating the local option laws, to which question, when asked, and the answer sought to be elicited, the defendant objected and excepted, because, even if a felony in Hale county, a violation of the local option law is not of that grade of felony as involves moral turpitude, and is inadmissible as touching the credibility of the witness, the weight to be given his testimony, or to impeach him, which objection the court overruled, and permitted the defendant to answer that he had. To which action of the court in overruling the above objection and exception the defendant then and there is open court excepted, and now tenders his bill of exceptions No. 2, and asks that same be examined, approved, and ordered filed. Y. W. Holmes and W. W. Kirk, Attorneys for Defendant.
“Examined, approved, and ordered filed this, the 16th day of April, 1917, with the following qualifications: The violation of the local option law being a felony in Hale county, the question was permitted as affecting the credibility of the defendant while as a witness on the stand and in the court’s charge said testimony was so limited. R. G. Joiner, Judge Presiding.”

It is seen from this that the sole “various and sundry exceptions” stated in the majority opinion were “because, even if a felony in Hale county, a violation of the local option law is not that grade of felony as involves moral turpitude.” It has always heretofore in a very great number of cases been held by this court that the defendant, or any other witness, can be impeached by showing he has theretofore been indicted for any felony, whether that felony involved moral turpitude or not, and that such defendant or witness can also be thus impeached by proving he had been legally prosecuted for any misdemeanor involving moral turpitude. 1 Branch in Br. Ann. P. O. p. 101 collates only a few of the great number of the cases. There is no case to the contrary.

The judge’s qualification was accepted by appellant without any objection in any way either in this or the lower court. In fact, his bill in effect concedes the selling of liquor was a felony. His sole objection was that it “was not that grade of felony which involved moral turpitude.” So that the cases •of Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149, and Graham v. State, 72 Tex. Cr. R. 9, 160 S. W. 714, have no application whatever.

The other bill to the remarks of the district attorney is too trivial to even merit mention, much less be made a ground for reversal. I quote it:

“Be it remembered that, on the trial of the above entitled and numbered cause, -while making his opening argument to the jury, the district attorney made the following statement: ‘You know the defendant is guilty, because the officers have been “chousing” him for the last five or six years for violating the local option laws.’ To which statement, when made, counsel for defendant immediately objected and excepted, because said statement was unsupported by the evidence and was highly prejudicial to the defendant; whereupon the court instructed the jury not to consider any statement made by the district attorney concerning the defendant being ‘choused’ for violating the local option laws. To which statement made by the district attorney the defendant then and there excepted in open court, and now tenders his bill of exception No. 3, and asks that same be examined, approved, and ordered filed as part of the record in this case. Y. W. Holmes and W. W. Kirk, Attorneys for Defendant.
“Examined, approved, and ordered filed this, the 14th day of April, 1917. R. G. Joiner, Judge Presiding.”

Appellant was assessed the lowest punishment for the crime he had, as the evidence shows, without any doubt, purposely, intentionally, and deliberately committed. Bass v. State, 16 Tex. App. 69; Pierson v. State, 18 Tex. App. 524; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; House v. State, 19 Tex. App. 227; Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 57. There is no need to collate the cases. They are innumerable. I am confident no case can be found in the books that will sustain the majority opinion herein on this point.

This case should have been affirmed. I dissent to its reversal. 
      i&wkey;For other oases soe same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     