Opinion
No. 13518.
Delivered May 21, 1930.
Murder — Evidence — Convict — Witness.
Appellant's witness having been convicted of a felony prior to the act of the Thirty-ninth Legislature, Chapter 27, the state's objection to the witness testifying was properly sustained.
Appeal from the District Court of Milam County. Tried below before the Hon. John Watson, Judge.
Appeal from a conviction for murder; penalty, confinement in the penitentiary for life.
The opinion states the case.
E. A. Wallace of Cameron, for appellant.
A. J. Lewis, County Attorney of Cameron and A. A. Dawson, State's Attorney, of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for life.
Appellant shot and killed his wife. It was undisputed that deceased was in bed at the time she was killed, and that appellant fired the shot from outside the house. The parties had had previous difficulties. Insanity was the sole defense.
Appellant's witness, Monroe Edwards, had been convicted of a felony in the district court of Milam County on the 4th of October, 1924. The judgment of conviction was affirmed by this court on the 10th day of June, 1925, which was prior to the taking effect of Chapter 27 of the Acts of the Thirty-ninth Legislature, 1925. Upon objection by the state, the witness was not permitted to testify. A conditional pardon by Governor Miriam A. Ferguson granted on the 20th day of January, 1926, was produced. We held in Alexander v. State, 281 S.W. 852, that the provisions of Chapter 27 of the Acts of the Thirty-ninth Legislature had the effect of rendering an unpardoned convict competent to testify, provided he was not incarcerated in the penitentiary at the time of the trial. In Underwood v. State, 12 S.W.2d 206, we held that said act did not have the effect of rendering a convict competent to testify in case the disability had attached prior to the taking effect of said act. The conditional pardon did not have the effect of rendering the witness competent to testify. McGee v. State, 16 S.W. 422; Dudley v. State, 24 Tex. Apps. 163, 5 S.W. 649; Carr v. State, 19 Tex.Crim. Rep.. Inasmuch as the witness had been finally convicted of a felony prior to the taking effect of the act in question, he was not competent to testify.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.