Under my belief and view of the law I can not concur in the opinion affirming the judgment herein. Appellant, it is true, was convicted of violating the local option law, but I am of the opinion that he is as much entitled to a fair trial in this character of case as he would be if charged with the violation of any other law on the statute books.
The State's witness, Jones, testified that on Friday he bought intoxicants from appellant, and on Saturday drank it and got, as he said, "gloriously drunk." For this he was arrested and caused to pay a fine. On Saturday night he went to his residence in the country. He says he got up Sunday morning sober. Sunday evening some one came to his home, whom he accompanied to town. While in town he made the following affidavit: "Before me, the undersigned authority, on this day personally appeared J.H.W. Jones, who after being by me duly sworn on his oath deposes and says that on yesterday, the 16th day of November, 1912, Frank Ross gave to him one pint bottle of whisky, or loaned it to him, and further this deponent says that he never paid the said Frank Ross any sum of money for same, or made him any promise of such payment and that he has never in his life bought any intoxicating liquors from the said Frank Ross." This was sworn to and acknowledged before H.F. Weldon, a notary public in and for Montague County, and witnessed by C.B. Downs. When confronted with this affidavit during the trial his mind became confused and very uncertain; in fact, all through his testimony it is made to appear that his mind, to say the least of it, was very forgetful, and that his memory was very deficient about many things connected with the case. He testified that his memory was often at fault, and he did not remember many things. Downs testified that the witness Jones came before Weldon and made the statement above quoted, and that it was made under oath. The State's case is entirely dependent upon the evidence of this witness. I desire to state that no man ought to be sent to the penitentiary or rendered infamous on the testimony of such a witness as this man Jones shows himself to be. A man whose memory is so defective, or if that memory is good, is so wanting in the elements of truth, ought not to be permitted to swear away the life or liberty of a citizen of Texas. If he was induced to make this affidavit and knew it was false, he ought to be held for perjury unless he is insane. If he is irresponsible for his testimony and was ignorant of what he was stating under oath, his testimony ought not to be used to incarcerate a citizen in the penitentiary. If he knew what he was stating, and knew it was false, it may be that he was as well induced to give the other testimony, that is, that appellant sold him the whisky, as he was to make the affidavit quoted, and from any standpoint his testimony ought not to be credited, and a citizen of this State should not be confined in the penitentiary and rendered infamous on such testimony. No man ought to be held guilty of violating any law, and the presumption of innocence held to be overcome, and his good name as a citizen *Page 503 ruined on the testimony of one who is so careless, indifferent or irresponsible as this man's testimony and the facts in this record show this witness to be.
While the witness Arledge was testifying in behalf of the defendant, on cross-examination the county attorney asked him if he was not on defendant's bond in this case, and whether or not he had been on other bonds for defendant. Various objections were urged to this, among others, that it was prejudicial, and that by proving by the witness that he had been on bonds of defendant in other cases was but a method of bringing before the jury that defendant had had other prosecutions pending against him, and because the State had no right, either directly or indirectly, to prove or allude to other and different prosecutions, and the court overruled these objections and permitted the witness to answer the county attorney's questions in regard to these former bonds, and the witness in answer to the county attorney's question said, "I am his bondsman at the present time; I think I have been on Frank's bond before this. I could not tell you how often I have been on Frank's bond, but every time he ask me to go on it." The same matter was reserved in another bill of exceptions in regard to the witness Downs. He answered: "I could not tell how many bonds I have been on for him. It is more than one I suppose; I might have been on as many as half a dozen during my life time." The court approves this with the explanation that "Arledge showed considerable bias in favor of the defendant, and this testimony was admitted to show their feelings in the case, and it nowhere appears what kind of bonds they had signed for defendant. This court does think defendant was prejudged, or that the result would have been different but for this." This qualification of the judge intensifies the error. The court may have intended to say that he did not think appellant's case was prejudged; and he may have intended to say he did not think the result would be different, but he did not say that. We must take the bill of exceptions as we find it. But even if we supply the defect in the judge's qualification and make it read that he did not think defendant was prejudged, or that the result would be different but for this, that is but the opinion of the court. The jury were the judges of the facts and the credibility of the witnesses, and this may have determined the case against the defendant in the face of the evidence of the witness Jones heretofore discussed. It may be doubtful whether or not under any view of the evidence that these witnesses should have been interrogated or permitted to swear as they did, but resolving the doubt in favor of the ruling of the court and against the presumption of innocence of the accused in admitting this character of testimony to show the bias and prejudice of the witnesses as being in favor of the defendant, yet from this viewpoint the jury should have been instructed that they could not consider this testimony against the defendant, and that this evidence should only be used as bearing upon the credibility of the witnesses and weight to *Page 504 be given their testimony. Appellant did not take the stand himself and testify, therefore, he was not asked about any former prosecutions, and he did not place his character in evidence. The character of the defendant was not involved in the case as an issue before the jury, for he alone could put that in evidence, and this he did not do. The question here is, having used the fact that these witnesses had been on bonds heretofore in cases against the defendant, this character of evidence could not be used as original testimony, nor could it be used as evidence against the defendant, but could only be used as affecting the testimony of the two witnesses as to their credibility and standing, or their partiality and bias in favor of the appellant. The jury should have been carefully so instructed that this testimony might only be used for its legitimate purpose, even if it be conceded it could be used as evidence. These questions were timely presented and urged in bills of exception and in the motion for new trial.
As this record is presented, for the reasons indicated I can not concur in the affirmance. This judgment ought to be reversed and the cause remanded.