The opinion
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ON MOTION FOR REHEARING.
LATTIMORE, Judge.
The State moves for a rehearing, insisting, in substance, that the appellant having injected into this case, by his own sworn statement as a witness, that he had not been arrested or indicted before Christmas, and that this issue being raised, the State had the right to bring the witness Bland, justice of the peace, and have him read and testify from his docket the record of appellant’s arrest and conviction for three misdemeanors, none of which were of such kind as to impute moral turpitude. - It will be noted that the State drew this testimony out of appellant on cross-examination.
Practically a similar question was before us in Johnson v. State, 91 Texas Crim Rep., 582, which was reversed upon motion for rehearing. The Johnson case is cited and followed in Waters v. State, 91 Texas Crim. Rep., 600 ; Rose v. State, 92 Texas Crim. Rep., 563 ; West v. State, 93 Texas Crim. Rep., 290 ; Williford v. State, 95 Texas Crim. Rep., 473 , and others. It is said, in substance, in the Johnson case that the State might have objected to the testimony of the accused, in effect, that he had never been arrested for anything, but not having seen fit to do so, the State could not offer as an excuse for its attack upon appellant’s past record, consisting of misdemeanor offenses, the proposition that appellant invited the error or furnished the excuse. Manifestly in the case before us the accused was not given the lowest penalty, and it may be properly so, — but this court cannot know that the jury did not appropriate the testimony of appellant’s misdemeanor convictions to the injury of the accused in the matter of penalty. See Bryant v. State, 292 S. W., 882 . We are not led to believe that we were wrong in our holding in this case.
The motion for rehearing is overruled.
Overruled.