Abercrombie v. State

264 S.W.2d 727 (1953)

ABERCROMBIE v. STATE.

No. 26835.

Court of Criminal Appeals of Texas.

February 17, 1953.

C. L. Harris, Lubbock, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

The conviction is for two sales of whisky in a dry area, as alleged in separate counts of the information; the punishment, six months in jail and a fine of $500.

Appellant testified and denied that he made any sale of whisky to the two agents of the Texas Liquor Control Board, and denied that he was present at the time the agents testified they had bought whisky from him at his home. He claimed an alibi and offered evidence in support thereof.

Bill of Exception No. 2 relates to the cross-examination of appellant wherein he was required to testify that he was convicted of burglary and given a 2-year suspended sentence.

Appellant was 33 years of age at the time of the trial. The two year suspended sentence for burglary occurred some 13 years before the present trial, at which time he was 20 years of age, and there is no showing that appellant had since been convicted of a felony or of a misdemeanor involving moral turpitude.

The court and counsel for the state were apprised of the remoteness of the conviction by objection made in the absence of the jury. The objection should have been sustained. See Branch's Ann.P.C., p. 101, Sec. 167; 45 Tex.Jur., p. 111, Sec. 250.

The testimony was of a prejudicial nature and its admission shows an abuse of discretion on the part of the trial court and calls for reversal of the conviction.

The judgment is reversed and the cause remanded.