Faubian v. State , 83 Tex. Crim. 234 ( 1918 )

Responding to the very earnest and carefully prepared motion for rehearing filed by State's counsel, we have re-examined the questions passed upon but are unable to reach the conclusion that a proper disposition of the case was not made. The suggestion by State's counsel that the facts present an issue of self-defense can not be sustained. There is evidence that Garrett assaulted appellant, and evidence that his conduct was such as to justify the conclusion, from appellant's standpoint, that Garrett was about to assault appellant at the time he drew his pistol. The shots were not fired by appellant then, and were not fired until after Garrett had manifestly abandoned any effort to continue the assault upon appellant, or to get into a position to renew it. As presented by the record, that the shots were fired after Garrett had abandoned any assault that he had made, we think, is manifest. Bordeaux v. State, 58 Tex.Crim. Rep..

The charge authorizing the jury to pass upon the issue of provoking the difficulty is without support in the facts.

The suggestion that it was permissible for State's counsel to ask appellant if he had not been named by Garrett, the prosecuting witness, in a divorce petition as the cause of the separation between Garrett and his wife on the issue of motive, we think, is not sustained under the facts of the case. Whether appellant had been so named was a fact of which the State's counsel manifestly had knowledge before he asked the question. When he asked appellant if he had not been so named appellant replied in the negative. This reply was accepted without controversy. It, therefore, appears from the record here that appellant had not been so named. The right of counsel to make inquiries to ascertain the truth is unquestioned, but his right to ask questions suggesting the existence of facts which tend to reflect upon the accused, when in truth the facts do not exist, rests upon a quite different basis. Bullington v. State,78 Tex. Crim. 187. Granting, however, that counsel for the State was well within his rights in asking the question mentioned, it is clear that the trial court should have corrected, as far as possible, its injurious effect by withdrawing it from the jury on request. Instances of reversals because there was put before the jury suggestions as to the existence of damaging facts by questions are to be found in the cases of Baines v. State, 43 Tex.Crim. Rep., and Wyatt v. State, 58 Tex.Crim. Rep.. Other cases on the subject will be found collated in 2 Vernon's Crim. Stats., p. 906, note 43.

The motion for rehearing is overruled.

Overruled.