Appellant's motion for rehearing is based principally upon an issue not fully developed in the original brief. He had been convicted in 1940 for four offenses, three of which carried the death penalty as an alternate punishment. It is not alleged in the indictment in the instant case that the second or succeeding convictions were for offenses committed subsequent to the conviction next preceding it. From the record it appears that such allegation would not have been sustained by the evidence even if made. It may be conceded then that evidence of only one of these convictions was properly admitted as evidence in the instant case as the record appears to be. This, however, is sufficient to admit the evidence complained of. See Art. 64, Vernon's Ann. P. C. and annotations thereunder. The chief contention made in the motion for rehearing is based upon a record, which, though not discussed in the opinion, was fully considered before the original opinion was approved.
It is further observed that when the State closed its case, the appellant took the stand in his own behalf and testified on direct examination as follows:
"I have been convicted prior to this time. I have been convicted four (4) times. And this time is pratically one time — it was all right at the same time; there were three (3) cases, and all in March of 1940. And my time, now, is one hundred (100) years."
The foregoing testimony is a little ambiguous and on cross examination the State was properly permitted to examine further into it and develop the fact that in addition to the four sentences appellant was then serving, he had previously served four sentences for felonies in the State of Oklahoma. Such four sentences are the ones referred to when the witness said: "I have been convicted prior to this time. I have been convicted four (4) times." We quote from the statement of facts the evidence of appellant on cross examination on the subject as follows: *Page 235
"I am doing time, at the present time, on four (4) convictions. Three (3) of them are for robbery with firearms, and one of them is for robbery by assault. Now, previous to that time, I had four (4) felony convictions, in the State of Oklahoma. One of those was for robbery with firearms; two (2) of them were for forgery, and one for burglary. Altogether I have had eight (8) felony convictions."
It is our conclusion that no error can be based on the admission of evidence under the indictment as to the convictions alleged in view of appellant's own testimony voluntarily given, which goes much further than that developed by the State in chief based on the allegations in the indictment of former convictions. He voluntarily brought into the record evidence of his four Oklahoma convictions and did it in such a way that the trial court was justified in overruling his objections to cross examination on the subject which fully developed the facts he had indefinitely related. Furthermore, it appears from the record that this evidence was properly admitted as throwing light on his credibility as a witness. The convictions were in about the year 1929 and there is nothing to show that he had been out of the penitentiary a sufficient length of time or that his demeanor had been such as to bar the evidence of these convictions for impeaching purposes.
It is our view that the foregoing conclusion precludes the necessity for further discussion of the motion. The motion for rehearing is overruled.