Appellant was convicted in the County Court of Kaufman County on a charge of violating the local option law, and his punishment, assessed at a fine of $25 and twenty days imprisonment in the county jail, and he appeals.
We will consider the grounds urged for a reversal of this case in the order in which they are stated in the motion for new trial. Appellant complains of the court admitting a certain book, styled "Record of Election Returns," to be read to the jury by the State's attorney, over the defendant's objection thereto. This complaint is based upon the fact that the county attorney offered the election returns of the local option election held in justice precinct No. 2. In view of the fact that the other orders were in regular form, this was unnecessary, yet its introduction in this case is not error, because it does not appear that it could or did injure appellant's rights in any respect.
The second error complained or by appellant is: "The court erred in permitting the pretended certificate of publication of the order declaring the result of the election, and prohibiting the sale of intoxicating liquor, in justice precinct number 2 of said county, to be read from volume 4, p. 629, of the minutes of the Commissioners Court of said county, over defendant's objection thereto." The ground of objection is that the certificate pertained to an election held on the 14th day of March, 1896, when Nestor Morrow was county judge of said county, and said certificate was not signed by said Morrow, nor was said certificate signed, or even made, until October 19, 1897, and then was signed by John Vesey, another and different county judge of said *Page 177 county, holding his office in a different year, and long after said certificate should have been made and signed, and after the defendant sold the intoxicating liquor, if he sold it. We do not hesitate to say that, in these matters, it is much the better practice to have the certificate of the fact that the order declaring the result has been duly published made by the county judge as soon as practicable after the same is published. One clause of article 3319, Revised Civil Statutes, reads as follows: "The fact of the publication in either mode shall be entered by the county judge on the minutes of the commissioners court. An entry thus made or copy thereof, certified under the hand and seal of the clerk of the county court, shall be held sufficient prima facie evidence of such fact of publication." It appears from this clause of said article quoted that no time is stipulated in said article within which the certificate of publication shall be made by the county judge. The former county judge, Nestor Morrow, testified that he had seen a copy of the paper containing the order of publication, and that he was satisfied that the same had been published four consecutive weeks. Then an order of the county judge, duly entered upon the 14th day of October, 1897, certifying as required by the statute, was also introduced. After its introduction, taken with other matters introduced, it made out a prima facie case, under the statute, of the existence of local option in Forney precinct No. 2, and it is irrelevant and immaterial whether that certificate was made before or subsequent to the commission of the offense in this case. The certificate of the county judge, Vesey, shows that the order declaring the result of the election was duly published prior to the commission of this offense. There is no merit in appellant's third assignment of error.
The fourth assignment complains of the failure of the court to give special charge number 1, to the effect that the publication of the order declaring the result of the election was a question of fact. We do not think there is any error in this regard, since the certificate of the county judge, as above indicated, was properly entered, making a prima facie case of the fact that it had been published. It therefore devolved upon appellant to show that it had not, and, in the absence of evidence on that point by appellant, the court had a right to tell the jury that the law was in force. The court, however, submitted the same as a question of fact to the jury. This was done fairly, and appellant's contention would be hypercritical, even had it been incumbent on the court to charge as contended. Jones v. State 38 Tex.Crim. Rep.. What we have said as to the fourth assignment of error disposes of appellant's fifth ground of complaint.
Appellant complains, in his sixth assignment of error, of the court's refusal to give special charge number 3, which requested the court to give additional instructions upon reasonable doubt. This was sufficiently given in the main charge, and we do not think appellant's rights have been at all injured by the failure of the court to give said charge. *Page 178
The seventh ground of complaint is that the court erred in telling the jury that the fact that the county judge's certificate was made after, instead of before, the commission of the offense, would not invalidate the law, but the same would be good. As indicated above, we think this was the law of this case, and hence we hold there was no error in this regard.
The eighth assignment complains of the court's charge in the following particular: "The object and effect of impeaching testimony is to discredit the witness sought to be impeached. It is not to exclude from the consideration of the jury the evidence of such witness, and the evidence of such witness sought to be impeached is still with the jury, and you can give it such credibility as you deem it entitled to." This charge is subject to the objections appellant urges in his brief. We take it to be upon the weight of the evidence. This is especially true in this case, in view of the fact that the witness Henby was the main prosecuting witness in the case, and, in fact, the only witness who testified to the actual sale. The charge was reasonably calculated to cause the jury to believe that they would have no right at all to entirely discredit the testimony of the witness Henby. Judge White, in delivering the opinion of the court in Howard v. State, 25 Texas Criminal Appeals, 686, holds the following charge was erroneous, to wit: "A witness may be impeached by proof that he has sworn different from what he does before you. This is not done for the purpose of proving such witness has sworn falsely before you, but to enable you to better judge of the credibility and worthiness of belief of such witness." We think the rights of appellant were prejudiced in this case by the court's charge in this particular.
Appellant's ninth assignment is with reference to the action of the court in allowing the State's counsel to ask defendant, on cross-examination, over defendant's objection, if he (defendant) had not been indicted for assault with intent to murder; to which question defendant answered, "Yes." This court has previously held "that a witness may be compelled to answer any question, however irrelevant to the facts in issue, however disgraceful to himself, except where the answer might expose him to a criminal charge." See Carroll v. State, 32 Tex. Crim. 431.
Appellant's tenth ground of his motion is that the court erred in allowing the State's attorney to ask the witness Pete Henby, to whom it is alleged defendant sold the intoxicating liquor, if one C.A. Long did not buy some whisky from said defendant on the 2d day of July 1897. This evidence was admissible, as indicated in the judge's explanation to the bill of exceptions, for the purpose of contradicting the witness Long and appellant, and therefore was properly admitted.
For the error of the court in the charge above set out, the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
DAVIDSON, Presiding Judge, absent. *Page 179