Crain v. State (17 S.W.2d 811, 1929)

MARTIN, J.

Offense, unlawfully driving an automobile upon a public road while under the influence of intoxicating liquor; punishment, 90 days in the county jail.

Appellant was arrested with two companions in an automobile being then driven by appellant on the San Saba and Llano pub> lie road. The testimony of the officers was to the effect that appellant was drunk at the time; they testifying that he was unable to walk straight. Whisky was found in two different receptacles on the side of the public road near where the car stood.

Appellant’s companion, Jim Wilson, was indicted for the transportation of intoxicating liquor, which offense is shown to have gro.wn out of the same transaction for which appellant was on trial. Appellant, by a proper affidavit and motion, asked that Jim Wilson, who he alleges-was separately indicted for an offense growing out of the same transaction for which appellant was indicted, be first tried that he might use said Wilson as a witness. His application was based on article 651, O. O. P. 1925, which provides in substance that, where two or more defendants are prosecuted for an offense growing out of the same transaction by separate indictments, either defendant may file his affidavit so stating, and that the evidence of such other party or parties is material to the defense, etc., whereupon such party whose evidence is so sought shall be tried first. It will be observed that appellant and Wilson were indicted for separate offenses.

As to whether an accused is entitled to a severance under such a state of. facts has been the subject of some contrariety of expressions by this court. We think the point, however, is ruled by the terms of article 82, P. O. 1925, and article 711, O. O. P. 1925. These articles are practically in the same language, and article 711, O. G. P., reads as follows: “Persons charged as principals, accomplices or accessories, whether in the same or different indictments, can not be introduced as witnesses .for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.”

Article 651, O. 0. P., relied on by appellant, was enacted later than either of the two articles above, and appears to relate ofily to a method of severance while article 711, O. O. P., and article 82, P. C., relate specifically to the disqualification as witnesses of parties who are “charged” as principals or accomplices or accessories. Appellant and Wilson were not charged wjith. the same offense. They do not come within the terms of the two articles last mentioned. It was said by Justice Hawkins in the case of Cotton v. State, 92 Tex. Cr. R. 600, 244 S. W. 1029: “It is the charge lodged against them by the state, and not the acting together which works the disqualification.” See, also, French v. State, 98 Tex. Cr. R. 580, 267 S. W. 494. The Cotton Oase goes into the question here presented rather exhaustively, and we regard it as announcing the correct rule and as sustaining the action of the trial court with regard to the particular matter under discussion. Wilson was not disqualified as a witness, and, in fact, testified for appellant in the trial of the instant case.

The substance of appellant’s next contention as shown by bill of exception No. 2 is that the court was in error in striking from the jury’s consideration certain testimony to the effect that one of the officers took some of the whisky found near the scene of appellant’s arrest home with him, and that others of the officers drank some of it. We do not think such testimony was admissible. Whether a witness did or did not, or would or would not, take a drink, is not admissible as affecting his credibility as a witness. This court has throughout its history monotonous-' ly repeated the rule that “specific acts of misconduct which have not eventuated in an indictment for a felony or a misdemeanor involving moral turpitude are not admissible as affecting the credibility of a witness.”

Finding no error in the record, the judgment is affirmed.

PER OURIAM. 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.

MORROW, P. J., not sitting.

On Motion for Rehearing

MORROW,. P. J.

Appellant was charged by indictment with driving a car while intoxicated. Jim Wilson was in the car, and was under indictment for the possession of intoxicating liquor for the purpose of sale. These are separate offenses. The fact that they were committed at the same time and while the appellant and Wilson were in the same car together did not disqualify Wilson as a witness for the appellant. The disqualifying fact under article 711, C. C. P. 1925, and article 82, P. C. 1925, is that the parties were charged with the same offense. When they are so charged, one is not available as a witness for the other. To make the coin-dictee available as a witness under proper conditions, the severance statute, article 651, C. C. P. 1925, is intended. Wilson not being under indictment for the same offense, he was not rendered unavailable- to the appellant as a witness by article 82, P. C., and article 711, C. C. P., from which it follows that there was no occasion to call into operation article 651, supra. The analysis of the subject and the conclusion reached in Clark v. State, 81 Tex. Cr. R. 157, 194 S. W. 157, and Cotton v. State, 92 Tex. Cr. R. 594, 244 S. W. 1027, are regarded as properly interpreting the statute.

The motion for rehearing is overruled.