Tally v. State , 48 Tex. Crim. 474 ( 1905 )

I do not agree to the reversal and believe the judgment should be affirmed. My reasons are as follows: In the motion for new trial appellant criticises the sixteenth paragraph of the charge, which reads: "The statement of the witness Andy P. Evans introduced by the State, wherein he stated in substance, that he saw Henry Tally at the theater sometime before the burglary, drunk, and that he put him out of the theater because he was drunk, was not admitted before you as original testimony, but only for the purpose of aiding you in determining the weight and credibility of the testimony of the said witness Henry Tally, and you will consider it for no other purpose whatever." The testimony upon which this charge was predicated was admitted without any objection being offered. If objection had been offered, it would have been error for the court to permit the same to be introduced for the purpose of impeachment, since it would be an effort to impeach upon an immaterial issue. Under the authorities of this court we have never held that drunkenness brought about that degree of moral turpitude which authorized its introduction in evidence to discredit a witness. However, the testimony having been introduced, without objection, for the court to limit it to one purpose, whereas the jury might have considered the same for other purposes without said limitation in said charge, I cannot see how appellant can complain thereof. Without said charge it could have been considered for all purposes, but under said charge it could be considered only for the one purpose. To this extent this charge is not injurious to appellant. In other words, appellant would have been injured more if the charge had not been given than by its being given. It is a well known rule, under article 723, that a charge which does not injure defendant will not authorize a reversal.