Immediately after the impanelment of the jury, the private attorney representing the prosecution stated in the hearing of the jury impaneled to try the appellant that there were jurymen for the week who were not engaged in the trial and who desired to be excused but that the State would not agree to excuse them for the reason that there was another indictment pending against the appellant and would insist upon an immediate trial of that indictment as soon as the present case was disposed of. Counsel for the appellant immediately excepted to the remarks as prejudicial and calculated to injure the rights of the accused in placing improper facts before the jury. The court verbally instructed the jury to disregard the remarks. When the appellant testified in his own behalf, he was asked on cross-examination if it was not a fact that he was now under indictment for three other offenses in this court, to which he replied that he was under two other indictments. This question and answer were made the subject of objection and exception upon the ground that the character of the accused was not in issue and because "the other indictments grew out of the same transaction." The court reserved his ruling upon the objection until he gave his general charge to the jury, at which time he instructed the jury as follows:
"Evidence has been introduced tending to show that the defendant is under two other indictments growing out of the same transaction, upon which this prosecution is charged; you are charged that such evidence is withdrawn from your consideration and you will not consider the same for any purpose."
When reference was first made to the matter the court only instructed the jury to disregard it. At that time it was manifestly improper to make any statement in the hearing of the jury to the *Page 463 effect that the appellant was under indictment in that court for any other offenses. That one indicted for three offenses growing out of the same act might be impeached on one trial by showing that the grand jury had indicted him in two others is a procedure to which, so far as the writer is aware, this court has never given its sanction. A single act, however, may not be synonymous with the term "the same transaction." The same transaction may comprehend several acts of one individual or many acts of a group of individuals. See Smith v. State,90 Tex. Crim. 274; Words Phrases, 2nd Series, Vol. 4, p. 970; also 3rd Series, Vol. 7, p. 570. When the appellant took the stand as a witness in his own behalf and testified, it became pertinent, for the purpose of affecting his credibility, to prove that he was under indictment for other felonies. The bill of exception in which complaint is made of the fact that he was called upon to give such testimony, sets out the question propounded by State's counsel, namely, "if it was not a fact that he (appellant) was under indictment for three other offenses in this court." The answer, as set out in the bill, was to the effect that he was under "two other indictments." In neither the question nor the answer is it disclosed that the other indictment to which the inquiry was addressed grew out of facts in any wise connected with the offense for which the accused was on trial. The bill, therefore, fails to show any transgression of the rules of practice, and the admission by the accused that he was under indictment for other offenses would tend to nullify the error committed at the beginning of the trial by the attorney for the State calling attention to the fact that there were pending against the accused other indictments. The only reference to the connection of the indictment to which the inquiry was addressed is that contained in the exception taken by counsel for the accused stating that the other indictments grew out of the same transaction. For that remark in the presence of the jury (if in fact it was made in the presence of the jury), State's counsel was not responsible as it appears from the bill. When one becomes a witness in his own behalf, it is competent to receive testimony to the effect that he is under indictment for a felony for the purpose of affecting his credibility as a witness. It would not be permissible, however, to make proof that he was under indictment for a felony involving the same act as that for which he was on trial. See Plunk v. State, 98 Tex.Crim. R.. Where there is evidence that one has committed an act which would warrant the indictment and prosecution for either one of three offenses, it would not warrant the indictment *Page 464 for each of the three offenses. Under such circumstances there should not be more than one indictment, though it might be embraced in separate counts so that the evidence could be adjusted to either one of the three and the matter properly controlled by the charge of the court. See Smith v. State,90 Tex. Crim. 274. As the matter is understood from the record, the opinion is expressed that reversible error is not shown.
The State's motion for rehearing is granted, and the judgment of the trial court is affirmed.
Granted.
ON APPELLANT'S MOTION FOR REHEARING.