Opinion
No. 20001.
Delivered December 7, 1938. On Motion to Reinstate Appeal February 8, 1939.
1. — Murder — Jurisdiction.
Where defendant, who had been convicted of murder, was at liberty under a defective recognizance, reciting that defendant had been convicted of aggravated assault, the Court of Criminal Appeals was without jurisdiction of his appeal.
ON MOTION TO REINSTATE APPEAL.2. — Murder — Charge on Self-Defense.
In prosecution for murder, wherein defendant claimed that he was being attacked by deceased and others when he fired the fatal shot, defendant was entitled to an instruction as to right to defend against a joint attack and failure to so instruct was error.
3. — Murder — Evidence — Particular Offenses.
In prosecution for murder, requiring defendant to testify on cross-examination, over his objection, that he had paid fines for fighting and shooting craps was reversible error, since offenses being "misdemeanors," and not involving "moral turpitude," proof thereof would not serve to impeach defendant.
Appeal from District Court of Nacogdoches County. Hon. C. E. Brazil, Judge.
Appeal from conviction for murder; penalty, confinement in penitentiary for three years.
Judgment reversed and cause remanded.
The opinion states the case.
Adams McAlister, of Nacogdoches, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for three years.
The recognizance recites that appellant has been convicted of an aggravated assault, whereas the conviction was for murder. In view of the fact that appellant is enlarged under a defective recognizance, this court is without jurisdiction.
The appeal is dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION TO REINSTATE THE APPEAL.
The record having been perfected, the appeal is reinstated and the case considered on its merits.
According to appellant's testimony, he was being attacked by deceased and two or three others when he fired the fatal shot. In the charge the court submitted only the right of the appellant to defend himself against an attack upon the part of deceased. Appellant excepted to the charge on the ground that he should have been accorded the right to defend against a joint attack. The state's attorney before this court concedes that the exception was well taken and that error is presented. We are constrained to agree with him.
It is shown in bill of exception No. 10 that appellant was required to testify on cross-examination, over his objection, that he had paid fines for fighting and shooting craps. This testimony ought not to have been received, and, in the state of the record, its receipt constitutes reversible error. Neither the accused nor any other witness can be legally impeached by proof that he has been arrested for, charged with, or convicted of a misdemeanor, unless such misdemeanor involves moral turpitude. Jones v. State, 13 S.W.2d 845. The offenses inquired about do not involve moral turpitude. Again, the state's attorney before this court concedes that error is presented.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.