Reich v. State (13 S.W.2d 697, 1929)

'CHRISTIAN, J.

The offense is assault with intent to rape; the punishment, confinement in the penitentiary for two years.

We have grave douht as to the sufficiency of the evidence; but, in view of the fact that the case must be reversed on other grounds, we pretermit a discussion of the question.

Over proper objection, the state elicited from appellant that complaint had been filed against him on September 9, 1921, charging him with assault with intent to rape, and that on January 18, 1927, a complaint had been filed against him on a chai-ge of embezzlement of property over the value of $50. Although several grand juries had intervened, indictments charging the offenses mentioned had not been returned. The court erred in admitting this testimony. We quote from-the language of Judge Lattimore, in Brown v. State, 105 Tex. Cr. R. 605, 289 S. W. 386, as follows: “It is permissible to show, as affecting credibility, that an indictment has been returned or a complaint filed charging a witness with a felony or an offense involving moral turpitude; but in case one be charged with a felony by complaint and there be a grand jury subsequently convened, which adjourns without returning any indictment therefor, proof of the fact of such charge by complaint is incompetent to affect the credibility of the person so charged and offered as a witness.”

In his argument to the jury, the district attorney stated, in substance, that appellant was unfit to walk in the company of decent people if the jury believed what pros-ecutrix had said and believed “all these indictments.” He further stated that appellant had been knocking on the doors of the penitentiary long enough and that it was time for somebody to let him in. Appellant objected to this argument, and the court refused to instruct the jury not to consider it, and declined to give appellant’s special charges on the subject. The remarks were improper, and, in view of the meagerness of the testimony showing guilt, it cannot be said that appellant was not prejudiced thereby. Testimony relative to other indictments and complaints had been admitted by the court for the sole purpose of testing the credibility of appellant as a witness. It could not be legitimately used for any other purpose. Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 393.

Eor the errors discussed, the judgment is reversed, and the cause remanded.

PER CURIAM. 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.