Boone v. State , 85 Tex. Crim. 661 ( 1919 )

The appeal is from a conviction for robbery with punishment fixed at confinement in the penitentiary for ten years.

It appears from a bill of exceptions that the appellant took the stand and testified in his own behalf, though the purport of his testimony is not embraced in the bill nor is the record accompanied by a statement of facts. Complaint is made of the refusal of the trial court to permit him, on redirect-examination, to make an explanation of his reasons for having pleaded guilty of embezzlement in a case in the federal court. The State's attorney, on his cross-examination, proved by him that he had entered such plea of guilty. The explanation that he desired to make was to the effect that the embezzlement was of funds that came into his hands as postmaster; that part of it he had received in the way of personal checks from customers for money orders issued by him, which checks had not been deposited at the time his post-office was inspected; and that part of the money involved in the embezzlement was drawn out of the bank by his wife without his knowledge, and that he entered the plea of guilty rather than implicate her.

The fact that he had entered the plea of guilty was admissible as affecting his credibility and its admission in evidence is not complained of. Assuming that he had a right to make the explanation mentioned, see Branch's An. Texas P.C., sec. 94, the court is not in position to pass upon the materiality of the exclusion of this explanation for the reason that it is not informed as to what facts were before the trial court. The only relevancy of the explanation was the bearing that it might have had in modifying any unfavorable opinion of the credibility of the appellant as a witness growing out of the proof that he had pleaded guilty of embezzlement. If the explanation had been received, the fact that he had made the plea of guilty would have still been legitimately in evidence. Unless the appellant had, while testifying in his own behalf, given evidence which, if believed, would have presented a defense to the charge against him, or have tended to mitigate or extenuate it, his impeachment in the manner stated could have had no material bearing upon the case.

We are of the opinion that the exclusion of the evidence he offered, if error, was not of such flagrant character, as to have been obviously injurious to a degree that it would require a reversal of the judgment. Jaques v. State, 19 S.W. Rep., 767; Groomes v. State, 40 Tex.Crim. Rep.; Dement v. State,39 Tex. Crim. 271; Lee v. State, 44 S.W. Rep., 635; Bradford v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 118.

There being no reversible error disclosed the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. October 15, 1919.