I can not imagine how anyone who would read the testimony in this case could even suggest that the evidence of appellant's guilt was "weak and inconclusive in its nature, and on close lines if not more than doubtful if it is sufficient," as is stated in the majority opinion. The appellant made no such contention in his motions for a new trial nor otherwise.
The State's testimony by wholly disinterested witnesses showed that there were some three persons confined in jail, and one or more of them had been so confined for many months, and they all wanted to escape. In some way they had secured a key and some files and were working on the key with these files so that they could make the key fit the lock and thereby escape, when appellant was arrested and placed in jail with them. The files they had were too large to file the key in such a way as to make it fit the lock. This was made known to appellant by them when he was placed in jail. He told them he had a *Page 463 new file just the right size. He was kept in jail just one day and night. As soon as he got out he procured the file he had told them of, and succeeded in getting it to these parties in jail by throwing it at a window so that they could and did reach and get it therewith to file the key they were working on, make it fit the lock and thereby open the jail door and escape. In some way the officers learned all this and by searching the jail found and identified this file appellant had conveyed to them before they succeeded in escaping. There can be no sort of doubt but that the evidence was clearly sufficient to sustain his conviction, and as stated he did not contend it was not.
The bill to his being required to answer that he had been indicted for illegally selling intoxicating liquor in Hale County within two years is not correctly stated in the majority opinion. I will copy the whole of it, merely omitting the heading, which gives the number and style of the cause and the term of court. It is: "Be it remembered that, on the trial of the above entitled and numbered cause, while the defendant, S.F. Lagow, was on the witness stand, and after testifying as a witness in his own behalf, he was asked on cross-examination by State's counsel, in the absence of any testimony that local option was in effect in Hale County, Texas, at the time inquired about, whether or not he had been indicted in the last two years in Hale County for violating the local option laws, to which question, when asked, and the answer sought to be elicited, the defendant objected and excepted, because, even if a felony in Hale County, a violation of the local option law is not of that grade of felony as involves moral turpitude, and is inadmissible as touching the credibility of the witness, the weight to be given his testimony or to impeach him; which objection the court overruled and permitted the defendant to answer that he had.
"To which action of the court in overruling the above objection and exception, the defendant then and there in open court excepted, and now tenders his bill of exceptions No. 2, and asks that same be examined, approved and ordered filed.
"Y.W. Holmes and W.W. Kirk, "Attorneys for defendant.
"Examined, approved and ordered filed, this the 16th day of April, 1917, with the following qualifications. The violation of the local option law being a felony in Hale County, the question was permitted as affecting the credibility of the defendant while as a witness on the stand and in the court's charge said testimony was so limited.
"R.C. Joiner, "Judge Presiding."
It is seen from this that the sole "various and sundry exceptions" stated in the majority opinion were "because, even if a felony in Hale County, a violation of the local option law is not that grade of felony as involves moral turpitude? It has always heretofore in a very great number of cases been held by this court, that the defendant, or any *Page 464 other witness, can be impeached by showing he has theretofore been indicted for any felony, whether that felony involved moral turpitude or not, and that such defendant or witness can also be thus impeached by proving he had been legally prosecuted for anymisdemeanor involving moral turpitude. 1 Branch in Br. Ann. P.C., p. 101, collates only a few of the great number of the cases. There is no case to the contrary.
The judge's qualification was accepted by appellant without any objection, in any way, either in this or the lower court. In fact, his bill in effect concedes the selling of liquor was a felony. His sole objection was that it "was not that grade of felony which involved moral turpitude." So that the cases of Leonard v. State, 55 Tex.Crim. Rep., 109 S.W. Rep., 149, and Graham v. State, 16 S.W. Rep., 714, have no application whatever.
The other bill to the remarks of the district attorney is too trivial to even merit mention, much less be made a ground for reversal. I quote it: "Be it remembered that, on the trial of the above entitled and numbered cause, while making his opening argument to the jury, the district attorney made the following statement: `You know the defendant is guilty, because the officers have been "chousing" him for the last five or six years for violating the local option laws.' To which statement, when made, counsel for defendant immediately objected and excepted, because said statement was unsupported by the evidence and was highly prejudicial to the defendant; whereupon, the court instructed the jury not to consider any statement made by the district attorney concerning the defendant being `choused' for violating the local option laws.
"To which statement made by the district attorney, the defendant then and there excepted in open court, and now tenders his bill of exception No. 3, and asks that same be examined, approved and ordered filed as part of the record in this case.
"Y.W. Holmes and W.W. Kirk, "Attorneys for defendant.
"Examined, approved and ordered filed, this the 14th day of April, 1917.
"R.C. Joiner, "Judge Presiding."
Appellant was assessed the lowest punishment for the crime he had, as the evidence shows, without any doubt, purposely, intentionally and deliberately committed. Bass v. State, 16 Texas Crim. App., 62; Pierson v. State, 18 Texas Crim. App., 524; Tweedle v. State, 29 Texas Crim. App., 586; House v. State, 19 Texas Crim. App., 227; Mooney v. State, 76 Tex.Crim. Rep., 176 S.W. Rep., 52. There is no need to collate the cases. They are innumerable. I am confident no *Page 465 case can be found in the books that will sustain the majority opinion herein on this point.
This case should have been affirmed. I dissent to its reversal.