Cassel v. State , 94 Tex. Crim. 23 ( 1923 )

Upon re-examination of the record in the light of appellant's motion for rehearing and oral argument of counsel thereon, we believe that in Bills Nos. 6 and 7 there was more merit than we comprehended at the time of writing the original opinion.

In going into it in more detail, it appears that the witness John Bradford, on behalf of the State, testified that appellant, a few days before the fire, had made a proposition to him to "pad the books and burn the building;" that the witness had declined to participate and had ceased his connection with the appellant as an employee. On cross-examination, the appellant asked the witness if it was not a fact that on the day after the fire, he, in conversation with one Thomas, had stated that he had found the defendant "to be as honest, as honorable and as clean a man as he had ever had any dealings with." The court declined to received the answer to this question, either as original evidence or as a predicate for impeachment. The bill shows that an affirmative answer was expected. Subsequently the appellant called Thomas as a witness and offered to prove that the witness Bradford had, on the day after the fire, made to the witness the declarations mentioned. The trial court appends to his explanation of the bill, the exceptions and affidavits of Bradford, qualifying the statement. The affidavits cannot be considered. Appellant refers to decisions of this court supporting his motion.

In the case of Norris v. State, 52 Tex.Crim. Rep., 106 S.W. Rep. 136, it appears that the witnesses Butler and Lawrence were introduced by the appellant to impeach the reputation of O'Neal for truth and veracity. To impeach or qualify the testimony of these witnesses against the veracity of O'Neal, the State offered in evidence a written petition which had previously been signed by the witnesses Butler and Lawrence seeking to have O'Neal appointed a deputy sheriff. Objection was urged by appellant upon the ground that it gave the opinion of the witnesses of the qualifications of O'Neal. The trial court admitted the evidence and this court approved its action and affirmed the case on the principle that the implication in the petition that O'Neal was of such honorable character as would make him worthy of an appointment to public office, was in such conflict with the testimony of the witnesses to his bad reputation for truth and veracity as rendered its admission in evidence proper.

In Sander's case, 54 Tex.Crim. Rep., 112 S.W. Rep., 68, the inquiry related to the death of Miss Baxter, of whose murder Sanders was charged. Her father, on cross-examination, was asked if he had not, when his daughter was found dead, entertained and expressed the opinion that she had committed suicide. The court excluded his affirmative reply, and this court, in reversing the case, said: "If it was a fact, as testified by Baxter, that there were various spots about her face and body indicating violence, he would have hardly been truthful in informing the neighbors, the sheriff, and officers, and physician, that he believed his daughter had committed suicide; at least, it was a matter of impeachment to show that his testimony on the final trial was at variance with his statements at the time of and just after finding the dead body."

Other rulings and expressions in the same case are in print. In Baker v. State, 79 Tex.Crim. Rep., 187 S.W. Rep. 950, the witness, Mrs. Laurie, wife of the deceased, having given testimony favorable to the appellant, the State was permitted to prove by her that she failed to attend the funeral of her husband. The court said: "This was admissible as affecting the credit to be given the testimony of Mrs. Laurie. It was unnatural conduct, if she cared anything for her husband; and while, perhaps, under the facts in evidence in this case, it would have but little weight, yet it was admissible, to be given such consideration as the jury deemed proper. It was also permissible to prove by W.C. Coleman that immediately after the killing Mrs. Laurie had said to him, `The killing was uncalled for.'"

In the instant case, the declaration imputed to the witness Bradford that he "had found the appellant as honest, as honorable and as clean a man as he had ever had any dealings with" was at variance with the testimony that he had given in behalf of the State, to the effect that the appellant had sought the aid of the witness Bradford in committing the offense of arson.

The State relied to a very great degree upon the credibility of the witness Bradford to furnish the necessary corroboration of the accomplice witness. Bradford's testimony was in conflict with that of the appellant, and on further consideration, in view of the authorities mentioned, the opinion, is expressed that the appellant was entitled to cross-examine the witness Bradford with reference to his declaration to the witness Thomas for the purpose of affecting his credibility, and for the purpose of laying a predicate to impeach him if he denied the statement; that he was also entitled to the use of the testimony of the witness Thomas for the purpose of impeaching the witness Bradford in the event of his denial of his declaration to Thomas. The importance of the credibility of the witness Bradford was such that the error of the court in ruling against the introduction of the impeaching testimony requires a reversal of the judgment.

The motion for rehearing is granted, the affirmance set aside and the judgment reversed and the cause remanded.

Reversed and remanded.