Dover v. State , 102 Tex. Crim. 113 ( 1925 )


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  • We briefly discuss each matter raised by appellant in his able motion. Bills of exception Nos. 3 and 4 complain of statements to and in the presence and hearing of appellant, involving the right or wrong of a certain dispute between him and deceased on the night preceding the homicide. This court has adhered to the rule that statements to and in the unquestioned presence and hearing of the accused, which call for a denial on his part, but to which he makes no denial or negation, may be proven against him. See Branch's Annotated P. C., Sec. 64, for collation of authorities. Such being the situation as evidenced by said bills of exception, it was not error on the part of the trial court to permit the testimony.

    We are cited to no authority and know of none holding it error to allow the State to prove that a threat made by appellant against deceased was communicated to the latter. This matter is complained of in appellant's bill No. 8. Nor do we see the harm of allowing the State to prove, as set out in bill No. 9, that on the morning of the homicide deceased was in a building which appellant approached from the west, and that deceased left same going out an east door. Authorities cited by appellant which discuss the question of undisclosed motives of deceased, seem without application. Movements of deceased unknown to the accused, may be proven when they do not affect a defensive theory. Bozano v. State, 60 Tex.Crim. Rep.; Singleton v. State, 167 S.W. Rep. 46; Eads v. State, 176 S.W. Rep. 576.

    Though a question be asked by the State reflecting on some person neither a party to the record nor a witness in the case, if same be objected to and the objection sustained, this, while not proper practice, would not seem to present such erroneous action on the part of the State's attorney as would justify a reversal. This matter is complained of in bill No. 11. That* our opinion referred to the witness named in this bill as being a State witness when in fact he was a defense witness, and that we stated that the complaint was of the refusal to allow *Page 122 appellant to ask a State witness a certain question, was but an inadvertence and states no matter harmful to appellant.

    Appellant objected to being asked, while a witness, if he had not been convicted of a felony. This objection was sustained, but appellant saw fit to reserve a bill on the ground that the purpose of the State's attorney in asking the question was to prejudice his case in the minds of the jury. Thereupon the State's counsel said that he had asked the question in good faith on information. The court instructed the jury not to consider this remark of State's counsel. We have carefully considered the matter and are unable to agree that it presents reversible error.

    The proposition contended for in appellant's bill No. 35 is not the law. The presumption of innocence is not based on any acceptance of the truthfulness of appellant or any or all of his witnesses in asserting some reason or justification for what he did. It is hardly necessary to attempt to begin a new practice in this State of instructing the jury in cases where some defensive theory is interposed, that such defensive theory is presumed to be true until the State has shown it to be false. This is not in accord with Art. 52 of our Penal Code, nor with any authorities known to us.

    The motion for rehearing is overruled.

    Overruled.

Document Info

Docket Number: No. 8872.

Citation Numbers: 277 S.W. 675, 102 Tex. Crim. 113

Judges: LATTIMORE, JUDGE. —

Filed Date: 5/6/1925

Precedential Status: Precedential

Modified Date: 1/13/2023