Dyer v. State , 107 Tex. Crim. 345 ( 1927 )

In his motion for rehearing appellant insists that bills of exceptions Nos. 12, 13, 14 and 15 show error requiring a reversal of the judgment.

From bill No. 12 it appears that the appellant, while testifying as a witness on cross-examination, was asked the following question: "You are a married man?" The appellant's objection to this question was sustained. The court instructed the jury to disregard the question.

From bill No. 13 it appears that the appellant was asked upon cross-examination the following question:

"You have heretofore been charged with the offense of seduction, have you not?"

Objection was made that it was immaterial. The court remarked:

"Overrule the objection; you may ask if he's been indicted."

State's counsel then asked: "Have you or not?" The witness answered that he had not.

State's counsel further asked:

"Isn't it true that you have been indicted for seduction and married the girl to prevent prosecution?"

The objection to this question was sustained.

Counsel then asked the witness:

"Didn't you tell Minnie Flowers about four days before this occurred that you had been charged with seduction?"

The ruling with reference to the last-named question is not disclosed by the bill. In each instance the bill fails to state the nature of the appellant's testimony upon the direct examination. This reviewing court is left without knowledge whether the cross-examination was pertinent to the direct examination or not. Counsel refers to several cases in support of his position. Among them are Ballard v. State, 262 S.W. 85; Rosa v. State, 86 Tex.Crim. Rep.. It is our opinion that the principle which controls the decision of the cases mentioned is not applicable to the facts at present before the court. In Ballard's case, supra, the question asked went directly to the heart of the appellant's defense. In the Rosa case, the questions propounded were such as to lead the jury to believe that the accused was a confirmed criminal and that the evidence thereof was in possession of the state. The objections to the questions were overruled. In the present case, as stated above, in the absence of a showing from the bill as to just what was the nature of the appellant's testimony upon direct examination, knowledge that the question propounded in bill No. 12 was not proper is not made plain. Assuming, however, that it was, no answer was given. The court promptly sustained the objection to the question and instructed the jury to disregard it.

In bill No. 13, appellant having assumed the attitude of a witness, it was permissible that the state prove that he had been indicted for a felony. The appellant's objection assuming that the question was not propounded in good faith finds no support in the bill. Counsel for the state may have pressed the question further than the proprieties would commend, but he seems to have received no comfort from the procedure. Such matters as the court did not exclude, the appellant denied; and there is nothing in the inquiry touching the vitals of the prosecution or the defense.

Bill No. 14 complains of the argument of the State's Attorney, in the course of which he said:

"Criminal lawyers are not employed by defendants accused of crime for nothing; they are employed for the purpose of seeing that their clients go free, unwhipped by justice; they knew what the state's testimony was going to be, gentlemen, and they framed an ingenious defense — I say a pretended defense to defeat the state's testimony. Are you going to swallow it?"

In making this argument counsel for the state seems to have gone far beyond the limits of legitimate debate. The court, however, promptly condemned it and instructed the jury to disregard it. If there were aught in the record which would warrant the belief that the jury was favorably impressed rather than offended by the remarks, this court might be justified in overturning the verdict. The verdict is amply supported by the evidence and assessed against the appellant the lowest penalty. Under such conditions, the court would not be justified in assuming other than that the verdict reflects the judgment of the jury upon the facts before them.

In the argument criticised in bill No. 15, we fail to perceive any objectionable language. The court, however, sustained the appellant's objection to the remarks.

Upon the record before us, considering the evidence and the result of the trial, as well as the rulings of the court, we are constrained to conclude that upon the original hearing of this appeal the proper judgment was rendered.

The motion for rehearing is overruled.

Overruled.