Overby v. State , 92 Tex. Crim. 172 ( 1922 )

Appellant again insists that we have misconstrued Article 865-c, Vernon's C.C.P., which is as follows:

"The court shall permit testimony and submit the question as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant has ever before been convicted of a felony; such testimony shall be heard and such question submitted only upon the request in writing by the defendant; provided, that in all cases sentence shall be suspended if the jury recommend it in their verdict. Provided further, that in such cases, neither the verdict of conviction nor the judgment entered thereon shall become final, except under the conditions and in the manner and at the time provided for by section 4 of this Act."

He urges that the only proper construction of this article as it relates to hearing of the testimony upon the issue of general reputation, is that such testimony is admissible only when the accused in writing requests the court specifically to hear evidence as to such reputation, and that unless his application for suspended sentence contains such further specific request in regard to testimony bearing upon his reputation, the State cannot introduce testimony of his bad reputation in regard to being a peaceable, law-abiding citizen. We intended to say in our original opinion that we do not agree to this proposition, but believe that the written application for suspended sentence, which is mentioned in several of the articles of our law giving to appellant the right to such sentence, when filed on behalf of the appellant, opens the door for the introduction of testimony bearing upon the issue of the general reputation of the accused, without any specific mention in such application of the matter of such reputation. In Martoni v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 349, we said:

"Appellant duly filed his sworn plea seeking to have his sentence suspended under the statute, if convicted. By this he put his general reputation and character as a peaceable law-abiding citizen in controversy, and the state had the right to introduce evidence on these subjects."

We believe this to be the settled law of this State and that its announcement is a correct one. While the punctuation in a given statute has effect, we do not believe it should control against the plain meaning of the language used. A careful analysis of Article 865-c, supra, makes evident the proposition that the first line of said article, which is as follows: "The court shall permit testimony and submit the question", applies equally to the proposition "as to whether the defendant has ever before been convicted of a felony" as to that referring to the general reputation of the defendant which is specifically limited by the statute to its proper function as enabling the jury to decide whether to recommend the suspension of the sentence. We believe that the line and part of said article which is as follows: "such testimony shall be heard and such question submitted only upon the request in writing by the defendant", refers to the fundamental and essential proposition which has been held by all the authorities as the issue upon which primarily depends the right of the accused to present his request for a suspended sentence, which is that he has never before been convicted of a felony.

Appellant also attacks our disposition of his bill of exceptions No. 2. Said bill of exceptions is as follows:

"Be it remembered that on the trial of the above styled and numbered cause, in this court, on the 16th of February, 1922, the following proceedings were had, to-wit: The court erred in allowing the State's counsel in his closing argument to the jury to refer to the omission of defendant's counsel to put on the witness stand witnesses who had been subpoenaed by the defendant to testify as to the general reputation of the defendant. This argument was objected to at the time the same was being made, and the court was requested by defendant's counsel to exclude argument and statements from the consideration of the jury, but the court declined to do so. In making such request of the court the defendant by his counsel stated to the court that such argument and statements were highly improper and were prejudicial to the rights of the defendant, because the State's counsel did not know himself the purposes for which said subpoenas had been issued, and if he did, and such purpose was for proving the general reputation of the defendant, still the defendant did not put in issue his reputation, and therefore the State's counsel had no right to inquire into the same, or to make any argument or statements in reference to defendant not putting such witnesses on the stand. To which action of the court in allowing the State's counsel to thus refer to such witnesses, the defendant by his counsel then and there excepted, and here and now in open court, tenders this his bill of exceptions and prays that the same be examined, signed and approved by the court and ordered filed as a part of the record in this cause."

We believe it to be a correct proposition of law applicable to all cases alike, and without the slightest intention to single out this appellant or his attorney, that the mere statement of a given fact or facts in a bill of exceptions as being the ground of objection stated to the court below by appellant of his attorney, is not tantamount to proof of the truth of the facts so stated. There must appear in the bill of exceptions further approval of the existence of the facts so stated, than that contained in the setting forth of the ground of objection. This court cannot know that the purpose of the appearance at court of witnesses for the defense, was unknown to the State's attorney from the statement of that fact as a part of appellant's objection to the argument of the State's attorney, and the statement by the appellant to the trial court. Gleaned from the grounds of objection, that the State's attorney did not know the purpose of the presence of said witnesses, will not suffice to inform this court that such was the fact. There is no stenographic report of the testimony in this case, and we find in the record merely what is denominated therein as "a brief statement of the above styled cause and of the facts proven on the trial thereof". In the absence of a showing to the contrary, we are bound to assume that the facts before the trial court were sufficient to lead him to conclude the argument in question supported by matters before the court. There is nothing in the case of Harris v. State, 91 Tex.Crim. Rep., 239 S.W. Rep., 972, in conflict with our conclusion in this regard. Rejected facts stated in a bill of exception to be material, can in no event held by us to be material when there is no statement of facts in the record.

The facts appearing in the argument of State's attorney as set out in bill of exceptions No. 3 were very different from those appearing in the argument by private counsel in the case of Stiles v. State, 91 Tex.Crim. Rep., 239 S.W. Rep., 964.

We have gone carefully over the matters set forth in this motion for rehearing, but have been unable to conclude that our former opinion was incorrect, and the motion for rehearing will be overruled.

Overruled.