On Motion for Rehearing.
LATTIMORE, J.Through some confusion in the terms of bill of exceptions No. 2, we were misled into believing that same showed an exception taken to the admission of testimony to the effect that appellant had been convicted in the federal court and given a fine of $50 for possessing intoxicating liquor, which would be but a misdemeanor not involving moral turpitude, and would therefore be inadmissible for the purpose of affecting the reputation of the accused as a witness. Said bill of exceptions in fact shows that same was taken to the fact that the court did not immediately grant a motion made by the attorney for appellant to strike said testimony from the record. The bill shows that the court did keep the matter under advisement for a time, but that at the conclusion of the testimony some few hours after the motion to exclude was made, thq court did then instruct the jury not to consider said testimony. We are not inclined to believe that the action of the court in this regard was erroneous, at least to such an extent as to call for a reversal.
However, upon further inspection of this record we are of opinion that a judgment of reversal should have been ordered. The testimony relied upon by the state appears in such unsatisfactory condition as that we are unwilling to let the judgment of conviction stand upon same in its present condition. There is testimony in the record suggesting the fact that appellant had been unlawfully tampering with other people’s cattle, and this suggestion may have contributed strongly to the conclusion of guilt reached by the jury.
The alleged stolen animal was unquestionably butchered and its meat and hide sold by the appellant. He was assisted in the butchering by one Lummie Booth, who went with him to the place where the meat and hide were sold to Mr. Rogers. Booth was a witness for the state and admitted on cross-examination that at said time and place appellant paid him $12 which he received from Mr. Rogers. Appellant introduced a witness who testified that he was present at the time of the sale and heard Johnson tell Rogers that he wanted $12 at the time with which to pay Lummie Booth for his cow, and that when Johnson gave Booth the $12 he told him it was in part payment for his cow. Another witness testified that Lummie Booth told him that he had informed Johnson that the cow belonged to him and his father. It further appears that'Lummie Booth told another witness who saw him after the trial that Johnson thought he was killing and selling a cow that belonged to Booth and his father. It also appears that Booth made an affidavit to this effect, although later he gave to the state a contradictory affidavit. Appellant took the stand and testified that he bought the alleged stolen cow from Booth upon Booth’s statement that it belonged to him and his father. It seems the cow was driven for a couple of miles in the daytime, and passed houses of a number of neighbors of its alleged owner before it was butchered. We are in such doubt as to the guilt of appellant under these facts as to be unwilling to let the judgment stand. The state may be able to strengthen its case upon another trial.
The state’s motion for rehearing will be overruled.