Conviction for selling intoxicating liquor, punishment two years in the penitentiary.
A state witness testified positively to a purchase from appellant of a half pint of whiskey. The sheriff testified that he saw appellant hand to said witness a bottle, and later saw the bottle of whiskey in the possession of said witness. The defense was an alibi, and appellant introduced several witnesses who testified that on the day laid in the indictment as the date of the purchase, appellant was out in the country and not at the place where the state witness claims to have purchased the liquor from him. On cross-examination these witnesses gave evidence of the fact that they did not know where appellant was the day before nor the day after the alleged date of sale, and their reasons for being certain of their knowledge where he was on *Page 166 the day of the sale are not entirely satisfactory. The evidence seems amply sufficient to support the conclusion of guilt.
Seven bills of exception were reserved. The first complains that the copy of the indictment served upon appellant, who was in jail, was not a true copy, because same did not contain the docket number of the case. The objection was entirely without merit. The copy served on appellant was exact and literal, save for the omission of the number of the case.
The purchaser of the alleged liquor admitted on cross-examination that he was under indictment for a felony. Appellant objected to his testimony on the ground that he was incompetent. The objection was not well taken. One under indictment is a competent witness. Incompetence only results from conviction of such felon. The court was entirely correct in refusing appellant's request for an instructed verdict.
While a witness appellant was asked if he had not been convicted of a felony in 1916. He answered without objection that he had. Later during the trial his counsel presented a written request that the court instruct the jury not to consider this testimony. To the refusal to give this instruction an exception was reserved. We do not conclude from the bill that any error was shown. Appellant may have remained in the penitentiary under said conviction up until near the time of this trial for aught shown in the bill. For aught this court knows from the bill the 1916 conviction referred to might have been one in a chain of felonies which may have continued down to the time of the trial. We do not hold a conviction of felony too remote to affect the credibility of a witness if other testimony shows that he has not reformed since said conviction, but has been continuously engaged in other crimes involving moral turpitude. The bill of exceptions taken must manifest the error complained of. Bills Nos. 6 and 7 set out objections to the charge of the court, but same have been considered and are not deemed necessary of discussion. Neither presents error.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.