Tbe offense is burglary; tbe punishment five years’ confinement in tbe penitentiary.
By bill of exception No. 3, appellant complains of tbe action of tbe trial court in permitting tbe county attorney, over his objection, to ask appellant if be bad not been indicted for murder. Tbe court qualified appellant’s bill by stating that, “after laying tbe proper predicate and it appearing that tbe matter inquired about was not too remote, tbe county attorney was permitted to ask tbe defendant tbe question complained of in said bill.” In a criminal ease, tbe defendant or any other witness, if tbe impeaching testimony is not too remote, may be impeached by tbe adverse party by proving by tbe witness on cross-examination that be bad been indicted or convicted or that be was then under indictment for a felony or for a misdemeanor imputing moral turpitude. Branch’s Annotated Penal Code, § 167; Robinson v. State, 70 Tex. Cr. R. 81, 156 S. W. 212. It follows that no error is manifested by the bill.
By bill of exception No. 4, appellant complains of tbe action of tbe court in overruling bis objection to paragraph 4 of tbe court’s charge, wherein tbe court instructed tbe jury on tbe converse of tbe law of principals. Appellant’s specific objection to tbe charge was that it placed a greater burden on him than was contemplated by law. _ An inspection of tbe paragraph complained of discloses that it is not subject to tbe criticism made by appellant. In applying tbe converse of tbe law of principals to tbe facts, tbe court, instructed tbe jury, in substance, that they must believe from tbe evidence beyond a reasonable doubt that appellant was present at tbe time of tbe commission of the dffense, if any, and, knowing tbe unlawful intent of tbe principal, aided him by acts or encouraged him by words or gestures in the commission of tbe offense. We are unable to agree with appellant that tbe charge complained of placed a greater burden on him than tbe law authorized.
By bill of exception No. 5, appellant complains of tbe action of tbe court in instructing tbe jury, in substance, that intoxication or temporary insanity produced by tbe voluntary recent use of ardent spirits did not constitute an excuse for tbe commission of crime, but that tbe evidence of temporary insanity produced by such recent use of ardent spirits might be considered in mitigation of tbe penalty. We are unable to understand bow appellant could have been prejudiced by tbe giving of this instruction. Appellant testified that on tbe date of tbe burglary he had been drinking liquor freely all day, and that be drank to tbe extent that be became unconscious of what was going on. We are unable to agree with appellant that prejudicial error is manifested by bis bill of exception.
By bill of exception No. 7, appellant complains of tbe charge on accomplice testimony; it being asserted by appellant that the court assumed in bis charge that the testimony of tbe accomplice made out a case against him, and further that tbe court instructed tbe jury that they must believe that tbe testimony of the accomplice connected tbe defendant with the offense charged, when be should have embodied in his charge an instruction that the jury must believe that tbe testimony of tbe accomplice showed that tbe defendant was guilty as charged. Tbe charge complained of conforms to tbe charge approved by this court in the case of Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194, except that tbe objectionable word “alone,” condemned by this court in Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188, has been omitted from tbe present charge. In tbe Oates Case, as in the instant case, the accomplice testified to facts which connected Oates with the offense, but did not testify to facts which constituted a complete offense. As in tbe present case, the jury were instructed in tbe Oates Oase, in tbe concluding words of tbe charge on accomplice testimony, in substance, that they must believe from all of tbe testimony, beyond a reasonable doubt, that the defendant was guilty as charged before they could convict him. See Henderson v. State, 97 Tex. Cr. R. 247, 260 S. W. 868. Tbe charge in tbe instant case conforms to tbe suggestions made in the" case of Standfield v. State, 84 Tex. Cr. R. 437, 208 S. W. 532, and under tbe facts clearly presents tbe law of accomplice testimony.
Tbe state’s theory, as disclosed by tbe testimony, was this: Appellant and Bill Mur-pihy went together in a car to tbe filling station of B. M. Hays some time between 9:30 o’clock on tbe night of October 18th, and 3 o’clock tbe following morning, burglarized said filling station, and took therefrom certain automobile casings and tubes. Tbe tubes and casings were taken by appellant and Murphy to Doug Johnson’s home, where they were unloaded by tbe two and placed in tbe bouse. Appellant carried an officer to Doug Johnson’s house, where the. stolen property was recovered. Appellant stated to tbe officer that be was drunk and sat in the car while Murphy went into the fillihg station and got tbe casings and tubes. In connection with bis statement to tbe officer, appellant asked tbe officer if be did not believe that, if he would testify that'he was drunk at the time tbe burglary was committed and that Murphy went into tbe filling station and *85stole the casings and tubes, he could defeat the state’s case.
Testifying in his own behalf, appellant stated that he had been drinking whisky during the day of alleged offense, and that in the afternoon he met up with Bill Murphy and Jeff Morgan and drank with them; that he met these parties about 7 o’clock, and that after they had been drinking some time they went to Mart, reaching there some time in the late night, and that, at the time they reached Mart, he (appellant) was drunk and had no clear recollection of what was going on; that he and his companions drank whisky during the time they were in Mart, and that he drank so much that he became unconscious as to what was going on; that he did not remember anything after that until he and Murphy were close to Doug Johnson’s place; that he knew he did not go into the filling station, because he was drunk and could not get out of the ear and was too far gone and unconscious.
Appellant requested the court, in substance, to affirmatively charge the jury that, ,if they had a reasonable doubt that he was drunk and unconscious at the time of the burglary and took no part in its commission, they would acquit him. The court refused to submit such issue to the jury, for the reason that he had submitted in his main charge an instruction in accordance with the provisions of article 36, Penal Code 1925, covering the law of temporary insanity produced by the voluntary recent use of ardent spirits.
If the defensive theory, if true, would defeat the state’s case as alleged, and the evidence raises such theory in an affirmative way, it is incumbent on the court to submit an affirmative charge covering the issue. Escobedo v. State, 88 Tex. Cr. R. 277, 225 S. W. 377. It is to be noted that appellant was able to lead the officer to the stolen property, and that he had sufficient recollection of the transaction, out of which the burglary grew, to describe to the officer the manner in which the burglary was effected. It was the state’s theory that appellant and Murphy were principals in the commission of the offense. Appellant’s testimony to the effect that he did not go into the filling station because he was drunk and could not get out of the car, if true, would not defeat the state’s case as alleged; for, if appellant, knowing the unlawful intent of his companion, aided him by acts or encouraged him by words or gestures in committing the offense, or kept watch so as to prevent interruption, he was guilty as a principal. Article 66, P. C. 1925. When considered in connection with the fact that appellant was able to reveal the location of the stolen property, appellant’s testimony is not of such cogency as to raise the issue touching his want of physical and mental capacity to engage in the commission of the offense as a principal. See Lyles v. State, 91 Tex. Cr. R. 400, 239 S. W. 616.
Furthermore, it is noted that the court charged the jury as follows:
“But, unless you do believe from the evidence beyond a reasonable doubt that the defendant either alone or in connection with one Bill Murphy as a principal, in the nighttime on or about the 18th day of October, 1926, as alleged, in said state and county, by force or at an unusual place, did enter; the house of B. M. Hays, as chárged in the first count in the indictment, with the intent to commit the crime of theft, you will return a verdict of not guilty.”
Finding no error, the judgment is'affirmed.
PER. CURIAM. 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.