Holladay v. State , 130 Tex. Crim. 591 ( 1936 )

In his motion for rehearing appellant renews his contention that the evidence is insufficient. The testimony established the fact that Clarence Holladay, appellant's daughter, gave birth to a child in September, 1935. She testified that appellant had sexual intercourse with her and that he was the father of her child. Another daughter of appellant gave testimony corroborating the version of the prosecuting witness as to the act of intercourse. Appellant denied any improper relations with his daughter. The settlement of the conflict in the testimony was for the jury, they being the exclusive judges of the credibility of the witnesses and the weight to be given their testimony.

Appellant contends that we were in error in holding that there was no abuse of discretion on the part of the trial judge in excusing E. M. Davenport, a State ranger, from the rule. This court has uniformly held that officers of the court whose services are necessary about the courtroom may be excused from the rule. Branch's Ann. P. C., sec. 348; Holmes v. State, 156 S.W. 1176. The bill of exceptions fails to show that the service of said officer was not necessary. Again, it merely shows that said officer testified for the State. Whether his testimony was material is not shown by said bill. As the matter is presented, we must presume that in excusing the witness from the rule there was no abuse of discretion on the part of the trial court. Branch's Ann. P. C., sec. 344.

We are still of opinion that appellant's bill of exception No. 1 fails to reflect error. Appellant was not denied the opportunity to interview the prosecuting witness and her sister. The court consented to the interview in the presence of Mrs. Darenau, who was in charge of the girls. We quote from Brewer v. State, 254 S.W. 809, as follows:

"Appellant appealed to the court for a private interview with the prosecutrix. The court consented to the interview provided the judge or the sheriff be present. The appellant declined these terms. The bill does not disclose it, but we presume the witness was under the rule. Otherwise the court would have had no control over her. Creswell v. State, 14 Tex. App., 1; Bullock v. State, 73 Tex.Crim. Rep., 165 S.W. 196. Assuming that she was under the rule, we are aware of no authority which would withhold from the trial judge the discretion in a proper case to accompany permission to talk to a witness by reasonable condition. The facts revealed by the bill do not show an abuse of such discretion."

It is shown in bill of exception No. 4 that appellant asked the prosecuting witness if she had not visited the Lamp home. The bill of exception is defective in failing to show what answer the witness would have given if the court had permitted her to respond to the question. In Branch's Ann. P. C., sec. 212, it is said: "A Bill of Exceptions taken to the refusal of the court to permit a witness to answer a question, either on direct or cross-examination, must show what the answer of the witness would have been in order to entitle it to consideration on appeal." In support of the text many authorities are cited, among them being Fletcher v. State, 153 S.W. 1135.

Appellant renews his contention that the trial court committed reversible error in declining to permit him to prove by the wife of appellant that Mrs. Young, a witness for the State, was unfriendly to the appellant because he had declined some nine years before to join a mob which had for its purpose the lynching of a man who had been charged with raping a relative of Mrs. Young. If it should be conceded it was proper for appellant to make such proof for the purpose of showing the animus of Mrs. Young, it is observed that the bill of exception fails to show the testimony she gave against appellant. As far as reflected by the bill of exception, said testimony may not have been of a material nature. If the witness was not a material witness against appellant the failure to permit him to show her animus could not be held to constitute reversible error. Hamlin v. State, 47 S.W. 656.

After a careful re-examination of all of appellant's contentions we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.