Burge v. State , 73 Tex. Crim. 505 ( 1914 )

Appellant has filed a lengthy motion for rehearing and an able argument thereon. In the first ground it is insisted that we erred in holding that the court committed no error in sustaining the objection to the following question, to the witness Matthews: "Well, don't you think that if you were entitled to a child's part of that $750, you would be entitled to a child's park of the $50,000, too," claiming that it is always permissible to introduce testimony to impeach the credit of a witness. This is no doubt true, but in this case this witness had already testified about being given one-fourth of the $750 paid by Burge to Mr. Vaden to keep his wife away from court, and in answer to the question, "Well, do you know whether you are going to get a child's part of that $50,000 that she sued for, he answered, `No, I do not know. I do not know that they are going to get it, and do not know anything about it.'" Appellant does not state that he expected to prove that any agreement had been entered into whereby Matthews was to be given any part of the money, if any was recovered, but only that Matthews would testify that if he was entitled to a child's part of the $750, he also thought he ought to be entitled to a child's part of any amount that might be recovered in the suit. It having been shown that there was no agreement to pay him anything and no legal obligation sought to be shown, but only that as Vaden had voluntarily given him part of the money paid to him to keep Mrs. Vaden from court, and get her to request the county attorney to dismiss the case against appellant, that he thought if he was entitled to that amount he thought he ought to be entitled to more if money was recovered in the suit, would have no bearing on this case, nor on the weight of his testimony. Had appellant stated in the bill he expected to prove, directly or indirectly, circumstantially or otherwise, that there was an agreement or understanding of any character that Matthews was to receive any portion of the money, if any was recovered, there would be merit in his bill, but the question propounded and to which objection was sustained, or the answer stated he expected to be made to the question, would have no such bearing. The wide range the court had already allowed in the cross-examination of this witness was amply sufficient to show any interest or bias he might feel or have in the case. The authorities cited by appellant on this question do not sustain his contention, but all of them only go to show that the motive of a witness, his interest or bias, may always be shown and this is unquestionably the law, but the question here propounded would throw no light on his motive, nor his interest, nor that he was biased in favor of the prosecuting witness.

Appellant for the first time in his motion for rehearing in this court claims that the court erred in not instructing the jury that Mrs. Vaden and J.M. Matthews were accomplices, asserting that as it is shown that Burge paid $750 to Vaden to get Mrs. Vaden to write a letter asking that the case be dismissed, and Vaden had given Matthews one-fourth of that amount, this made them accomplices, and the court should have so instructed the jury. No such contention was made in the court below at the time of the trial; nor in the motion for a new trial, and, if the court should so have instructed the jury, it would be too late to raise such question while the case is pending in this court on motion for rehearing. (Chap. 128, Acts 33rd Legislature, p. 278.) However, this testimony would not raise such an issue. Mr. Branch, in his work on Criminal Law, correctly states the law to be: "Witness is not an accessory or accomplice and no charge on that subject is required from the fact there is evidence that the witness offered or accepted money to leave the State, or desist from prosecution; the fact that one compounds a felony does not of itself make such party an accessory to the felony compounded." Citing Chenault v. State,46 Tex. Crim. 351; Robertson v. State, 46 Tex. Crim. 441; Chitister v. State, 33 Tex.Crim. Rep.; Smith v. State, 51 Tex.Crim. Rep.; Davis v. State, 52 Tex. Crim. 332. The only case sustaining appellant's contention is that of Gatlin v. State, 40 Tex.Crim. Rep., but that case was shortly thereafter overruled in the Chenault case, supra, and the Chenault case has been followed since that time.

The second ground of the motion is that we erred in holding that the witness could testify whether or not Mrs. Vaden was in a nervous, distressed condition when they saw her. We discussed this so fully in the original opinion we do not deem it necessary to do so again, and would not do so except that appellant notes one question and answer not taken cognizance of by us. After Mrs. Vaden had testified to her condition, after she claimed she had been assaulted, she was asked how long this condition lasted, and she said for about a week. This and other questions in the case are discussed in the case of Jacobs v. State, 66 Tex. Crim. 146, 146 S.W. Rep., 558, and it was there held that it was permissible to testify that from the injuries received the lady who had been raped was confined to her bed for two or three weeks.

All the other questions in the motion for rehearing are fully discussed in the original opinion, and the motion for rehearing is overruled.

Overruled.