Looper v. State , 96 Tex. Crim. 275 ( 1923 )

Appellant renews substantially the same contentions made by him in the original presentation of this case. He seems to think that it was the duty of the learned trial judge because the accused had no lawyer, to interpose objections and in some way prevent the introduction of evidence to which no objection was made upon the trial and which is now urged as erroneously allowed. When appellant was testifying in his own behalf he was asked by the State's attorney if he had ever been convicted for selling intoxicating liquor and replied that he had pleaded guilty a good while ago and had gone to the road. It is urged that the trial judge committed reversible error in admitting this testimony because it was shown upon the motion for new trial that the matter referred to by the appellant in his testimony was a plea of guilty to selling liquor under what is known as the local option law, the offense being a misdemeanor. Appellant cites Hightower v. State, 70 Tex.Crim. Rep., 165 S.W. Rep., 185, as evidencing the opinion of this court that same was a misdemeanor not involving moral turpitude. It is also insisted that the offense inquired about was too remote to have affected the credibility of appellant as a witness, even if the matter was competent, and Stull v. State, 47 Tex.Crim. Rep.; McGill v. State, 71 Tex.Crim. Rep., 160 S.W. Rep., 353, and Vick v. State, 71 Tex.Crim. Rep., 159 S.W. Rep., 57, are cited. None of said authorities nor any known to us uphold the proposition that it is the duty of the trial judge to interpose an objection to a question which is not objectionable upon its face. It was permissible to ask appellant if he had been indicted or convicted for selling intoxicating liquor. There is not even a suggestion that the learned trial judge knew that appellant was going to give an answer which would refer to his conviction of some misdemeanor transaction. This court indulges no presumptions against the correctness of the action of the officers of the law and finds nothing in the record which justifies the assumption in the argument on the part of appellant that the State's attorney knew that the defendant was going to give an answer which would be incompetent. The contentions made by appellant in both regards are without support in the record. Nor do the authorities seem to hold that the admission of such evidence would require a reversal even if erroneously admitted, when the proof of guilt is clear. The Vick case cited by appellant contains the following statement in the opinion: "Admission of illegal testimony will not constitute reversible error unless some injury is shown or reasonably made to appear." The facts showing appellant's guilt herein were plain and the proof thereof direct. The matter inquired about by the State's attorney and brought out without objection on the part of appellant manifestly related to a collateral matter.

The motion for rehearing will be overruled.

Overruled.