Wood v. State , 80 Tex. Crim. 398 ( 1916 )

Appellant, in his motion for rehearing, presents but few questions, the first of them relating to the testimony of Sam Cobb, the other being to the refusal of the court to give a special charge requested.

The defendant called Sam Cobb as a witness, and he testified at appellant's instance that prior to February 17, 1915, he had gone with the prosecuting witness, Miss Virginia Riley, a number of times, and that he had hugged and kissed her.

The State then cross-examined Cobb, and he testified, among other things, that appellant had told him, in speaking of Miss Riley, "It is there for me, and if I can not get it any other way, I am going to rape her."

On redirect examination Cobb testified he had not been with Miss Riley since the term of court preceding this trial, and that he did not remember being with her any time since March 14, 1914. That he could not tell what he said or appellant said on the occasion testified to on cross-examination other than that appellant said he was going to have intercourse with Miss Riley if he had to rape her. Then on recross he said, "I have never had more intimate relations with the girl than I have told the jury about. I never told anybody that I had a hell of a time with her."

After the examination of the witness the State moved to exclude the testimony of the witness wherein he stated he had hugged and kissed the prosecuting witness, which motion was sustained by the court, and defendant reserved a bill of exceptions. In the case of Lawson v. State, 17 Texas Crim. App., 292, this court, speaking through Judge Willson, said:

"It is too well settled in this State to admit of question or discussion that, while the general character for chastity of the alleged injured female may be shown to be bad, not in justification of the offense, but as weakening the evidence of the prosecution as to want of consent, yet, it is not admissible to prove particular instances of unchastity, except with the defendant. (Pefferling v. State, 40 Tex. 486; Dorsey v. State, 1 Texas Crim. App., 33; Rogers v. State, id., 187; Jenkins v. State, id., 346; Mayo v. State, 7 Texas Crim. App., 342.) It was, therefore, not error to reject the evidence offered by the defendant to prove that Luncinda Lawson had, prior to the alleged rape, been guilty of illicit carnal intercourse with another man."

This rule has prevailed in this State in an unbroken line of decisions, and if one can not show that the prosecutrix had been guilty of illicit intercourse with another in this character of case, how much less reason is there for the contention that evidence is admissible to prove that the prosecutrix had merely kissed another man. This identical question was passed on, however, in Kearse v. State, 88 S.W. Rep., 364 (an assault to rape case) and this court held: "Appellant complains that the court erred in refusing to permit Emmett Lockhart to testify to having kissed the prosecutrix. The fact that prosecutrix may have kissed witness Lockhart would be no argument that she would kiss appellant." Appellant, however, insists that while the testimony is not admissible to in any manner affect the prosecutrix, yet as Sam Cobb, on cross-examination by the State, had testified to facts against him, it was permissible to show by him that he had kissed the girl to show his bias and interest and to affect his credit as a witness, and cites us to the case of Curry v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 851, wherein this court said, speaking through Presiding Judge Prendergast: "Motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters. Great latitude is allowed in asking questions on cross-examination. A witness may be asked any question, the answer to which may have a tendency to affect his credibility," citing and quoting from a number of authorities. Appellant overlooks the fact that he called Sam Cobb as a witness, and not the State, and he thereby vouched for his credibility, which fact makes the Curry case wholly inapplicable. The State had made its case and rested, and appellant in making his defense called Sam Cobb as a witness. If he did not think him a credible witness, why would he call him to testify? The only instance in which one who calls a person to testify can impeach such witness is where the opposite party on cross-examination testifies to some affirmative fact against him, which he did not know he would testify to when he called him as a witness. No such state of facts is shown by this record, but on the other hand it is shown that this was the second trial of this case, and on the former trial the witness had testified to the same facts he did on this trial on cross-examination by the State. That appellant is not allowed to impeach a witness called by him under such circumstances was settled against appellant's contention in Perrett v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 316; Oates v. State, 67 Tex.Crim. Rep.; Hollingsworth v. State, 182 S.W. Rep., 465, and cases cited. One can not call a witness, knowing what his testimony will be, in order to get in otherwise inadmissible testimony by way of impeachment, when he knows the witness would testify as he did when he called him to the witness stand.

After the witness had testified on cross-examination as he did appellant on redirect examination asked Cobb "if he, Cobb, had not told appellant he had hugged and kissed the prosecutrix a thousand times, and said, `Believe me, I have had a hell of a time with her.'" Appellant says he knew the witness would deny making such a statement, but he desired to ask the question to lay a predicate to impeach him. Again, we would say appellant called Cobb as a witness, and the State did not do so, and if he knew he would so testify, what right had he to ask a question to lay a predicate to impeach him? However, appellant seeks to bring himself within the rule that, when a part of a conversation is introduced by one side, the other party may elicit the entire conversation. Appellant, however, forgets that he testifies he had no such conversation with Cobb as Cobb testifies to, and he admits had he been permitted to ask Cobb the question Cobb would testify he had no such conversation in regard to which appellant seeks to lay a predicate to impeach him. To put the matter plainly, Cobb testifies that appellant told him, in speaking of Miss Riley, "It is there for me, and he would get it, and if he could not get it in no other way he would rape her." Appellant vehemently denies that any such conversation ever took place, and says he made no such statement nor said anything similar to it. Under that provision of the statute which provides that when part of a conversation is introduced, it all becomes admissible, appellant does not seek to show what he in fact said, nor anything Cobb said that would excuse, mitigate or justify him in using the language, if he did do so, but seeks to introduce something he claims Cobb said, which Cobb denies. As said by Presiding Judge White in Penland v. State, 19 Texas Crim. App., 365, it is only where the evidence offered is explanatory of the acts and declarations of defendant with reference to parts of the acts and declarations admitted against him, that come within the rule of article 751 (now article 811). In Kunde v. State, 22 Texas Crim. App., 65, Judge Willson says: "It is obvious that portion of said testimony offered by defendant had no relation to that part introduced by the State, — was not necessary to make that introduced understood, nor did it in any way explain the same. It was clearly inadmissible by virtue of article 751 (now 811) and it was inadmissible under any rule of evidence." It is only when the other evidence offered would explain the part introduced or is necessary to make fully understood what has been introduced that such additional testimony becomes admissible under article 811. Ford v. State,41 Tex. Crim. 1.

The complaints as to the remarks of counsel were fully discussed in the original opinion, and we do not deem it necessary to do so again. As to the only remark complained of in the motion for a rehearing in this court, the bill shows the court withdrew it from the jury and instructed the district attorney to remain in the record. No other or additional instructions were requested by appellant, and if he did not think the withdrawal by the court and the instructions given at the time sufficient, it was his duty to ask for and secure additional instructions.

As the court had fully defined consent, as applicable to the facts in this case, as shown in that part of the charge copied in the original opinion, it was not necessary to give the special charge requested on that issue.

The motion for rehearing is overruled.

Overruled.