Hopperwood v. State , 39 Tex. Crim. 15 ( 1898 )

Appellant was convicted of theft of one head of cattle, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.

On the trial, appellant, put Alf. Childs and Walter Gardner on the stand, and proved by them the good character of the appellant, in the neighborhood where he had lived, for honesty. The State was permitted on the cross-examination of said witnesses to show that they had heard appellant accused of connection with the theft of a certain other head of cattle, said theft having occurred prior to the alleged theft of the head of cattle involved in this trial. But said witnesses stated that they had not heard this matter discussed until after the commission of the alleged theft in this case. Appellant reserved a bill of exceptions to this testimony, on the ground that the State had no right to show witness' knowledge obtained post litem motam, but said investigation and examination should be confined to defendant's general reputation ante litem motam. It was held in Forrester v. State, 38 Texas Criminal Reports, 245, that where a witness was put on the stand by one party, and made proof of general reputation, on cross-examination by the opposite party, particular acts of conduct involving the trait of character under investigation could be inquired into. But we know of no case in which it has been held that the reputation of the witness, either as to general character or on cross-examination as to particular acts occurring subsequent to the commission of the offense on trial, can be inquired into.

Where a defendant is on trial, it is his character prior to the commission of the offense that may be inquired into, and not the character he may have had after the commission of the alleged offense, or what was said about his character after that time. On this subject, Mr. Rice, in his work on Evidence (volume 3, page 610), quotes with approval what was said on this subject in Reid v. Reid, 17 New Jersey Equity, 101, as follows: "No rule is better settled or founded on clearer principles than that which excludes all testimony touching reputation founded on opinion expressed post litem motam." It is true the act charged against the defendant in this case is said to have occurred prior to the commission of the offense for which he was on trial, but the witness had not heard that matter spoken of until after the commission of this offense; and evidently the discussion of the alleged theft in this case caused the other matter to be spoken of. So far as the record shows, these witnesses had not heard of the prior act until after the alleged commission of this offense. They did not previously know that he had ever been accused of any dishonest act. They had never heard anything mentioned of his character in this respect. Evidently, such testimony was inadmissible for any purpose.

Appellant also reserved a bill of exceptions to the conduct of the court in taking charge of the witness C.J. Bartlett, and examining him with reference to the possession of the alleged stolen animal. He complains that the action of the court was not in accord with the known rules of law, and that he propounded leading questions to the witness, which counsel would not have been permitted to do. We have examined the bill of exceptions in this respect, and it does show that leading questions were propounded by the court. We would remark in this connection that the State furnishes, for the purpose of examining witnesses and conducting prosecutions, a district or county attorney, whose province it is to examine the witnesses; and rarely should it occur that a judge should undertake the examination of a witness. Of course, there may be occasions. when it would be necessary for him to interfere, and have a witness restate his testimony, or to state more clearly parts of his testimony. But such occasions can rarely occur; and, when they do occur, the judge should interfere in the examination of a witness with great caution. When the court assumes the province of interrogator of a witness, the same rules should be applied as to the form of questions to him as apply to counsel in charge of the case.

The court gave the following charge on recent possession: "You are instructed that if you believe from the evidence in this case that the property alleged to have been stolen was so stolen, and recently thereafter was found in the possession of the defendant, and that the defendant, when his possession of the same was first challenged, gave an explanation of his said possession, which appears reasonable and probably true, then, before you would be warranted in finding a verdict of guilty in this case, you must be satisfied from the evidence beyond a reasonable doubt that the other testimony in the case establishes the falsity of such explanation so made by the defendant; and, if the State has so failed to so satisfy you that such explanation was false, then you will acquit the defendant. But in this connection I further instruct you that the State is not bound to prove the falsity of defendant's explanation by direct or positive testimony, but the same may be shown to be false by any evidence sufficient to satisfy your minds that it was false." To which charge appellant objected, on the ground that the charge was not demanded by the evidence; that, as given, it was a charge upon the weight of the evidence; and that it instructed the jury that the falsity of the explanation might be shown by circumstantial evidence, and then failed to give the jury an instruction on circumstantial evidence. We think the charge on recent possession was unnecessary. The defense set up by appellant was mistaken identity as to the yearling. The evidence of the appellant tended to show that, when he took the yearling, he thought it was his own. This defense was given by the court in a proper charge, and this was enough. The charge in question, we think, is subject to the criticism that it was a charge on the weight of the testimony. It was tantamount to telling the jury that they could convict on recent possession alone of the alleged stolen property, if the State had shown that appellant's explanation of how he came by the possession was false. It was not necessary for the court to give a charge on circumstantial evidence, as the taking was proved by positive testimony.

We do not deem it necessary to discuss other assignments; but, for the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.