O'Neal v. State , 66 Tex. Crim. 460 ( 1912 )

For the first time by a motion for rehearing herein, appellant contends that the complaint and information are fatally defective because the date of the election whereby prohibition was put in force in Wise County was not alleged. The question was in no way raised by the appellant in the lower court. This question has been fully discussed, the authorities cited and the question held adversely to appellant's contention in the case of Meyer v. State, 145 S.W. Rep., and Hamilton v. State, 145 S.W. Rep., 349.

The only other question urged by appellant on rehearing is that the court permitted the State to ask the defendant's witness Hamlett, if he had not been indicted and there was then a case pending against him in the County Court of Wise County, wherein he was charged with selling liquor in violation of the local option law, and if another of defendant's witnesses, Roy Williams, was not a witness in his case also. The original bill of exceptions on this point has been sent up and is now before us, which makes clear what was stated in the original opinion to be somewhat obscure, because of apparent mistakes by the clerk in copying the qualification by the judge to the bill.

As stated in the original opinion, the fact that a witness had been indicted or prosecuted for a violation of the prohibition law, merely a misdemeanor, could not be proven to impeach the credibility of the witness, and if that had been the only purpose or use to which such testimony could have been put in this case, such evidence would have been clearly illegal as has been often held by this court. See Wright v. State, 63 Tex. Crim. 429, 140 S.W. Rep., 1105, where some of the cases to that effect are cited. But that was not the purpose and use to which the State put this testimony, but it was for the purpose of showing the motive, status and interest of the witness Hamlett against the State in this prosecution. As shown in the original opinion, this is always permissible. The authorities are fully cited in the original opinion.

Certainly if the status and interest, and prejudice against the State of Roy Williams could have been shown by him when he was upon the stand by showing that he was a standing witness for the several persons against whom these prosecutions for violating the prohibition law were prosecuted, as seems to be conceded by appellant in his argument of this question on rehearing, then certainly the State would not be precluded from proving it by any other witness who knew the fact as was done by making the proof by Hamlett in this case. That it could also have been proven by Williams himself but was not, did not make it inadmissible to prove it by another witness.

The motion will be overruled.

Overruled.