The offense is cattle theft; the punishment, confinement in the penitentiary for two years.
The ■ issue of guilt was closely contested. The state relied largely upon the testimony of an accomplice. It was appellant's theory, supported by his testimony and that of other witnesses, that the accomplice had stolen a cow belonging to Edward McGriff and that thereafter he had sold the animal to appellant.
*1066 Over proper objection the district attorney was permitted to elicit from appellant the fact that he had paid a fine of $50 in the federal court for possessing a pint of whis-ky. Appellant’s counsel immediately moved the court to instruct the jury not to consider the answer of the witness. Later during the trial the motion was repeated. The court overruled both motions. After the testimony had been concluded, the court instructed the jury that they would not consider the evidence in question for any purpose. At the time appellant paid his fine in the federal court, the offense of possessing intoxicating liquor was not a felony. Moreover, it was not a misdemeanor involving moral turpitude. Carter v. State, 100 Tex. Cr. R. 95, 271 S. W. 629. Hence such evidence was not admissible to impeach appellant. Branch’s Annotated Penal Code, § 169. The question is: Did the court’s action in withdrawing the testimony from the jury cure the error? It is the rule that if the illegal testimony admitted over the objection of the accused was of a material character and was calculated to influence or affect the jury adversely to the accused, its withdrawal will not cure the error in admitting it. Branch’s Annotated Penal Code, § 383. Admitting proof of other offenses committed by the accused is not cured by withdrawing the illegal testimony. Branch’s Annotated Penal Code, supra. As stated before, the issue of guilt was closely contested. The illegal testimony was of a material character, and in our opinion was calculated to influence the jury to return a verdict against appellant. Hence the error is reversible.
For the error discussed, the judgment is reversed and the cause remanded.
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.