Johnson v. State , 80 Tex. Crim. 169 ( 1916 )

In his motion for rehearing appellant presents some of the same questions which were thoroughly considered and passed upon in the opinion affirming this case. It is unnecessary to again discuss any of them.

There were some questions raised but not passed upon in the previous opinion. We will now discuss them.

Appellant claims the court erred in not permitting him to ask the prosecuting witness, Ella Braun, in substance, if she hadn't been charged in the Justice Court by complaint some three or four years prior to that time of the theft of a diamond ring, and if as a matter of fact she didn't steal it and confess to the officers that she had stolen it. We state this briefly. In approving the bill the court qualified it by stating that defendant's counsel stated that he expected to prove these facts by this witness, "but the court does not know and is unable to certify as a fact that the witness would have testified that she had admitted stealing any ring. The testimony was excluded by the court for the reason that no indictment was presented against the witness, several grand juries having met and adjourned subsequent to the time that such complaint was made against her." The court's ruling was correct. Wright v. State, 63 Tex.Crim. Rep.; Williamson v. State, 74 Tex.Crim. Rep., and other cases.

While appellant was on the stand the State asked him over his attorney's objections if he had one of the baby's pictures, and he answered that he had. The court subsequently expressly withdrew that testimony from the jury and charged them not to consider it. This would be no such material matter as would justify this court to reverse even if the court had not withdrawn the testimony, but under the law as well established, as the court withdrew it, it would present no reversible error in any contingency. Miller v. State, 79 Tex.Crim. Rep., 185 S.W. Rep., 29, and cases there cited.

In another bill appellant claims the court erred in not permitting him to answer this question asked by his attorney: "Q. Did you know, or did you hear, of anyone having had intercourse with the prosecuting witness, Ella Braun?" Upon the State's objection, the court refused to permit him to answer this question. The court, in approving the bill, qualified and explained it as follows: "That defendant never offered to prove nor did he claim to have ever seen anything improper about the conduct of the prosecutrix or to have had any personal knowledge of any act of intercourse, nor did the court deny the defendant the right to prove by any witnesses he may have been able to produce, any act of intercourse with prosecutrix. On the contrary, the fullest latitude was given to defendant to prove anything by legitimate evidence that might tend to show that prosecutrix was unchaste before he seduced her. The question as framed and asked as to what he had heard would have called for hearsay evidence." As qualified, this bill shows no error.

The court did not err in refusing to give two special charges requested by appellant. The court in qualifying each of his bills to the refusal of his charges stated that the testimony did not call for such a charge. The court in a correct charge submitted all the issues raised by the testimony. Appellant made no objection to the court's charge.

The motion is overruled.

Overruled.