Thomas v. State , 100 Tex. Crim. 288 ( 1925 )

Appellant contends at length that we should have considered his special charges which were simply marked "refused" without any notation on said charges of the fact that exception was taken or reserved to the refusal thereof, and to the refusal to give which no separate bill of exceptions was taken. The exact point thus raised by appellant was made the subject of careful and exhaustive discussion in an opinion written by Presiding Judge Morrow in the case of Linder v. State, 250 S.W. Rep. 703, opinion on rehearing. We can add nothing to the conclusions announced in that case.

Appellant insists that because no witness in terms contradicted the testimony of his wife, the jury should have accepted it as true and returned a verdict of not guilty. We regret that we cannot agree with this contention. There are some statements appearing in subdivision 6 of notes finder Art. 786 Vernon's C. C. P., but the cases cited therein should be looked to and the language used by the annotator carefully considered. The rejection of the testimony of a near relative, or of the wife of the accused, or of a witness who might not be deemed truthful under the circumstances by the jury, would not be an arbitrary rejection. In Satterwhite v. State, 6 Texas Crim. App. 609, a theft case, the accused produced a witness who swore, that he was present and saw the defendant swap for the alleged stolen animal. No one contradicted this, but this court held, in an opinion rendered by Judge White, that the jury would not have to accept the story thus told unless they saw fit. From the opinion in that case we quote:

"From the fact that a witness is unimpeached and uncontradicted, it does not follow that the jury are necessarily bound to believe his evidence and take it as true. There is no such positive rule any more than that they must reject his testimony if evidence has been offered to impeach him."

As above observed, this reasoning of Judge White applies with peculiar force to the testimony of one who by reason of close relationship might be deemed by the jury to be biased.

Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.

Overruled.