
    Hubert Love v. The State.
    No. 9098.
    Delivered May 20, 1925.
    Assault to Murder — Evidence—Of Unpardoned Convict — Inadmissible.
    Where the state relies solely upon the testimony of a witness, who after conviction is disclosed to have been an unpardoned convict, and where appellant tried his own case, without counsel, and the penalty is more than the minimum, to affirm the judgment of conviction would, in our opinion, be manifesting an injustice to the accused, and the cause is reversed. Following Barber v. State, 223 S. W. 457.
    Appeal from the District Court of San Augustine County. Tried below before the Hon. V. H. Stark, Judge.
    Appeal from a conviction of an assault to murder; penalty, six years in the penitentiary.
    The opinion states the case.
    W. T. Davis, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover G. Morris, Assistant State’s Attorney, for the State.
   MORROW, Presiding Judge. —

The offense is assault to murder; punishment fixed at confinement in the penitentiary for a period of six years.

The State relied almost entirely upon the testimony of the injured party, Abe Roberts, for the conviction of the appellant.

The controverted question is that of malice and intent. In support of the theory that the injury was accidentally inflicted, evidence of the declarations of Roberts, which he denied making, was introduced by the defense. It was developed upon the motion for new trial by way of newly discovered evidence that Roberts was an unpardoned convict. The diligence to discover this is not as strong as might be desired but the appellant tried his own case without counsel. His conviction rests upon the testimony of a witness who, by statute, was prohibited from giving evidence. The penalty is more than the minimnm. An affirmance of the judgment of conviction by this court under the circumstances would, in our opinion, be manifesting an injustice to the accused. Barber v. State, 223 S. W. Rep. 457.

The State’s Attorney before this court concedes that the conviction should not stand. We are of the same opinion.

The judgment is reversed and the cause remanded.

Reversed and remanded.  