Crowell v. State , 147 Tex. Crim. 299 ( 1944 )

Appellant complains because of the failure in the original opinion herein to discuss some of his bills of exceptions which were not noticed in detail therein, one of such complaints being because deputy sheriff Mobley was allowed to testify that "the citizens of Anthony came to me, as a peace officer, and said they wanted something done about it; they didn't like what was going on up there and there were a lot of citizens that were pretty well riled up about the thing." This testimony was given under the following circumstances: The officer was asked on cross-examination by appellant's attorney if he, the officer, had not told such attorney, soon after appellant's arrest, that: "Yes, I stated to you (defendant's counsel) in that conversation out there at the hospital that Mr. Crowell was a pretty good old man and that I felt sorry for him, but I also stated that I wanted to run him out of Anthony." Whereupon on redirect examination, upon the part of the State, he was allowed to explain why he wanted to run appellant out of the town of Anthony.

This witness, a deputy sheriff, had given testimony for the State that was damaging to appellant's defense, and in order to show unfriendliness towards appellant the attorney had inquired of the officer if he had not made the statement relative to running appellant out of town. This was done in order to show ill will and bias upon the part of the witness, as well as an effort to impeach his testimony and discredit him before the jury. It will be noted, however, that this conversation was first gone into by appellant's attorney upon the officer's cross-examination, and evidently was an attempt to impeach or at least to reflect on the witness and his testimony; he then had the privilege of showing why he desired to get appellant out of town. See Branch's Penal Code, Sec. 94, p. 60. Again, Mr. Branch says, p. 62, idem:

"Whatever material facts are introduced that tend to affect the issue, the other side has the right to deny, contradict or explain that testimony, showing its falsity, or breaking its force and effect in any legitimate way," citing a long list of cases.

In the case of Venn v. State, 78 Tex.Crim. R.,182 S.W. 315, while one Weaver, a State's witness, was on the stand, he was asked on cross-examination if he did not run off and forfeit his attachment bond in a district court case growing out of some cases "turned in by him" before the grand jury, whereupon the county attorney asked this question: "Why did you run off and forfeit your attachment bond as a witness?" and he answered: "Because I was afraid of some characters I was dealing with." In that case we said:

"Under the decisions it seems that this testimony, having been brought out by the defendant, or the fact, rather, that he ran away and forfeited his attachment bond in regard to a District Court case, would justify the county attorney in inquiring into the reasons why he forfeited such attachment bond. It seems it did not apply to this case, but the defendant elicited the fact that witness had forfeited his attachment bond. We are under the impression that under such circumstances the county attorney would be entitled to prove by him why he forfeited the bond. The matter had nothing to do with this case in any way, but inasmuch as the defendant brought out the matter, it became the subject of cross-examination by the State."

We think this matter is governed by Art. 728, C. C. P., especially the latter part thereof wherein it is said:

"When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence."

It is true that this testimony consisted of hearsay, but not all hearsay testimony is inadmissible, as witness that which is here legitimately present relative to the reputation of Adeline Crowell as well as that of Mrs. England, as well as their conduct with the presence of men going into and coming from this house at all hours. Under the cross-examination of the State's witnesses as to the reputation of these women, it became evident therefrom that there was a considerable amount of talk in the neighborhood relative to what occurred both in the daytime and the nighttime at this house and with these women. We think the testimony complained of is found in substance in the testimony of the character witnesses to such an extent that it informed the jury of nothing new or different from what had already been admitted without objection, much of such testimony being brought out on cross-examination of State's witnesses.

Appellant also complains again relative to certain remarks of the county attorney when he was arguing to the jury that "ex-deputy sheriff Mobley had complaints from the preacher and others against defendant, and that this was stated by Mobley in reply to a direct question asked him by defendant's counsel," appellant's objection thereto being that "No such question had been asked said witness by defendant's counsel." This ground of the objection seems to be true, appellant's counsel having merely laid the matter open for an explanation upon the part of the officer. In any event we held above that the statement itself was admissible under these circumstances, and we think that as to this argument it was immaterial therein as to who asked such question, the testimony being properly before the jury.

On account of the insistence of appellant's attorney we have discussed the matters raised by appellant in this motion, and which were not written on in the original opinion.

We adhere to the views as expressed in the original opinion, and overrule the motion for a rehearing.