The opinion
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
Appellant while a witness was asked on cross-examination by the State if he had not been convicted for petty theft. He replied that he did not know. Asked if he had not been indicted for stealing, he said he did not know. Asked if it was not a fact he had a case pending against him in the County Court for theft, he said it might be a fact. That theft is an offense involving moral turpitude, and that proof of the pendency of a case wherein a witness is charged with theft, may be made as affecting his credibility, is so well settled as not to need citation of authorities. . In Branch’s Annotated P. C., p. 107, many authorities are cited holding that one who is asked relative to an impeaching fact who does not remember or makes no answer which amounts to a positive denial, can be impeached by proof of the existence of the facts thus asked him. The principle involved in said citation applies here. Appellant having stated that it might be a fact that he had a case against him for theft, the State had a right to prove that in fact he was then charged with theft in the County Court.
Appellant’s motion for rehearing will be overruled.
Overruled.