Appellant was convicted in the District Court of Jones County of the offense of possessing intoxicating liquor for the purpose of sale, and his punishment fixed at one year in the penitentiary.
From the State's testimony we learn that appellant had agreed to sell liquor to one Davis and that he met him at a certain point and had in his possession two quarts of whisky. Davis testified that appellant had told him the price of the liquor was ten dollars a gallon. Davis produced a five dollar bill and according to the testimony of the chief of police of Stamford, who witnessed the transaction, he handed the five dollar bill to appellant. At this point said chief of police took part in the transaction and took charge of appellant and his whisky.
There is but one bill of exceptions in the record which reflects appellant's complaint of certain argument of the district attorney. In substance the argument was a statement of the fact that appellant had testified that he had never been charged with any offense, but when the district attorney took him on cross-examination he admitted that there was pending against him an indictment for theft in the county court; and that if appellant would lie about the fact of his having been charged with any offense, he might be giving false testimony about every other fact testified to by him. A misdemeanor theft is an offense involving moral turpitude and the inquiry of appellant was proper and testimony of the pendency of the theft charge was admissible as affecting the credibility of appellant as a witness. The argument of the district attorney seems in nowise improper.
The only exception to the court's charge is that it does not affirmatively present the theory of the defense, but there is nothing in said exception showing what the theory of the appellant is and the court derives therefrom no information which would enable us to appraise the weight of said objection.
Finding no error in the record, an affirmance will be ordered.
Affirmed.
ON REHEARING. May 7, 1924.