Paulk v. State , 107 Tex. Crim. 174 ( 1927 )

In bill of exceptions No. 4 it is shown that the witness, Bess Hildebrand, testified in detail in favor of the prosecution touching many of the facts and circumstances attending and leading up to the transaction which occurred in Tucker's Lane upon which transaction the conviction rests, and as to what occurred there the State relied upon her testimony alone to establish the essential elements of the offense charged. The bill gives in great detail a resume of the testimony adduced from the witness upon direct examination and describes minutely her demeanor showing that she displayed great embarrassment, hesitation, shed tears, spoke in a tone of voice so low that she could scarcely be heard and generally displayed timidity, shame and humiliation. From the bill it appears but for objection of the State's counsel, sustained by the court to questions propounded by appellant's counsel, witness would have admitted that five days previously, upon a habeas corpus hearing in the same court, touching the same transaction, presided over by the same judge, testimony recorded by the same stenographer, in the presence of many persons occupying the courtroom, in an examination conducted by the same counsel, covering substantially the same matter, she had answered questions promptly, with head erect in a defiant manner, engaged in argument with counsel, showed no timidity, embarrassment, humiliation, shed no tears, but gave her testimony boldly and in a loud tone of voice audible throughout the courtroom, and in fact, in her demeanor and appearance she was entirely self-possessed and in marked contrast with that displayed by her on the present occasion.

In qualifying the bill the learned trial judge states that the present trial was of undue length; that the witness was vigorously cross-examined for a long period of time by counsel for the appellant, and that under such circumstances she seemed crushed and humiliated. On the original hearing the writer was impressed with the idea that the explanation of the bill of exceptions vitiated its effect. This, upon a more careful examination, does not appear to be so, for the reason that it is manifest that in qualifying the bill the court stated matters which he knew but of which the jury was ignorant. It is competent for the trial judge to testify to relevant facts, (Art. 717, C. C. P., 1925) but extraneous matters stated in qualifying a bill of exceptions, are not available. Benson v. State, 44 S.W. 163. The basis of the complaint in the bill of exceptions is that the jury had no knowledge of the demeanor of the witness on the previous hearing. The conduct of a witness is a matter of weight with the jury in appraising the testimony given by the person. The testimony of the witness in question was in direct conflict with that of the appellant upon the vital issue of the consent of the witness. Upon the credit given her testimony by the jury depended the liberty of the appellant, and perhaps his life. The two were alone on the occasion in question. To discredit her touching the things that transpired at that immediate time his sole reliance was upon her cross-examination. In the right of cross-examination is embraced the right "to have the assistance of counsel for his defense" guaranteed by the sixth amendment to the Constitution of the United States and by the Bill of Rights, Art. 1, Sec. 10, of the Constitution of Texas. Of it, it is said:

"The importance of the right of full cross-examination can scarcely be overestimated. As a test of the accuracy, truthfulness and credibility of testimony, it is invaluable. It is the clear right of the cross-examining party to elicit suppressed facts, which weaken or qualify the case of the cross-examining party." (Thompson on Trials, 2nd. Ed., Vol. 1, p. 420, Sec. 406.)

Upon the present record, as certified in the bill of exceptions, but for the restriction placed by the trial judge upon the cross-examination of the prosecuting witness, she would have admitted the difference in her demeanor which the bill portrays. In his qualification to the bill, the learned trial judge seems to have based his ruling upon the fact that there was some difference in the direct examination and cross-examination of the witness on the present and former occasions. By his ruling we are constrained to conclude that the right of cross-examination was unduly restricted, under the peculiar circumstances, to the prejudice of the accused.

In his motion for rehearing, appellant re-opens the question of the soundness of the ruling of the trial court and of this court touching bill of exceptions No. 3, which is discussed in the original opinion, appellant insisting that the testimony of bystanders to the effect that there was a difference in the demeanor of the witness on the former and present occasions should have been received in evidence. The writer fails to perceive any plausible theory upon which such testimony of third parties would be available or admissible unless it be to impeach or discredit the prosecuting witness touching the testimony given upon the trial. If the writer comprehends the record, it was the position of the learned trial judge that the proffered testimony was not relevant for any purpose for the reason that it was characterized as a comparison under different conditions. This inference is drawn from the fact that, as shown by bill No. 4, the court upon that ground excluded the proffered admission by the witness of the difference of her demeanor upon the two occasions. It is the conception of the writer that bill No. 3, as the record now appears, presents but an academic question for the reason that the testimony to which reference is made in the bill is the same as that treated in bill No. 4, save that in the one case the testimony was offered from bystanders and in the other upon the cross-examination of the prosecuting witness. Under no circumstances could she have been impeached by proof of her demeanor by bystanders or third parties when she was ready to admit, as shown by bill No. 4, the difference in demeanor claimed by the appellant. While, as above stated, not necessary to the decision of the case, it is not deemed improper by way of explanation to add that the court does not wish to be understood as indicating that it regards evidence of the difference in demeanor in a witness while testifying upon two separate occasions as available except by way of cross-examination.

The motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.