Rains v. State , 140 Tex. Crim. 548 ( 1940 )

Appellant has filed a vigorous motion wherein he alleges we were in error when we held that the trial court was correct in excluding the proffered testimony of W. W. Orr relative to a purported conversation had with appellant the next morning after the alleged homicide. This matter was properly excluded by the trial court, so we herein held in the original opinion, because of the fact that same was self-serving and was made after a motive or inducement existed to fabricate. I confess this matter has given us much concern. I find in Mr. Branch's Penal Code, p. 111, the following statement: "Where defendant or his witness has been impeached or sought to be impeached by proof of contradictory statements, it is error to refuse to permit defendant to sustain his own testimony or that of his witness by proof of statements similar to those testified to on the trial which were made shortly after the transaction and before any motive or inducement existed to fabricate." This statement is supported by a citation of twelve cases, and is true as a general proposition, and supported by these authorities on the general doctrine that a witness who has been sought to be impeached by statements made outside those made upon the trial, may introduce statements made to others that would tend to corroborate the statements made by him on such trial. That such statements thus sought to be introduced are self-serving can not be denied, but the rigidity of such a rule is relaxed provided such statements made by the witness occurred at a time when no motive to fabricate existed. The ruling in this instant case hinges on the above proviso and on account of the fact that a motive to fabricate existed at the time that this self-serving declaration was supposed to have been made to Mr. Orr, such was herein held to be inadmissible. If this rule is thus enforced it necessarily results in depriving all accused persons of its benefit. A motive to fabricate always exists so far as a defendant is concerned; the moment the offense is committed, and outside of the res gestae, the enforcement of such rule would mean that an accused could never combat any attempted impeaching and contradictory statements to the one made at the trial, by his self-serving declarations to the contrary of the statements used in the effort to impeach him.

It was held in Hudson v. State, 49 Tex.Crim. Rep.,90 S.W. 177, in substance, that where a boy, charged with rape, testified on the stand that he was fourteen years old, the State in rebuttal thereof placed two officers upon the stand who testified that upon Hudson's arrest he told them he was sixteen years old, and Hudson then offered the county attorney who heard Hudson's statement before the grand jury before whom he had testified, and alleged that such attorney's testimony would be that he told the grand jury that he was fourteen years of age at the time of the commission of the offense. This Court held this testimony to be admissible, and no mention in such holding was made relative to the presence of a motive to fabricate.

In the Streight case, 138 S.W. 742, this Court said: "It is also well settled that, when a witness is sought to be impeached by proving contradictory statements, then such witness can be supported by showing that she made the same statement, as she makes on the trial, in a former recital of the matter. These were the main witnesses for defendant, and this action of the court was very material error."

This Court has long ago held that where a State's witness has been impeached relative to some material testimony given by such witness upon the trial of the case, that the State had the right to attempt to bolster up such witness' testimony by showing that such witness had about the same time made to other persons statements similar to the ones made while testifying on the stand. The case of English v. State, 34 Tex. Crim. 200,30 S.W. 235, in an opinion by Judge Hurt, holds as follows: "Appellant complains of testimony to the effect that the witness gave on the night of the homicide a similar version of the facts attending same as sworn to by him on the trial. Appellant, before this, had made an attack upon him, by trying to prove that his evidence was recently fabricted. Under this state of case, the State had the right to sustain her witness by proving that just after the homicide her witness made the same statement in substance as that sworn to on the trial, and by this means disprove that his testimony was recently fabricated." This decision has been followed in Fondren v. State, 169 S.W. 428. If such rule should and does apply relative to a witness for the State, the same reliance should be had thereon in behalf of the accused.

Mr. Wharton in his work on Criminal Evidence, 10th Ed., Vol. 1, Sec. 491, page 1019, makes the following statement: "And where a witness has been impeached through contradictory statements, some states allow proof of consistent statements to re-establish his character. In those states the consistent statements are admissible whether under oath or not, and whether written or verbal, but the consistent statement must be relevant, and it must correspond in substance with the statement to be sustained. Such statements may be proved by any person who heard the corresponding statement." As to the states adopting such a rule, this State is listed by the following cases: Wallace v. State, 46 Tex.Crim. Rep., 81 S.W. 966; Lee v. State, 44 Tex.Crim. Rep., 72 S.W. 195; Hardin v. State, 55 Tex.Crim. Rep., 117 S.W. 974. These citations seem to support Mr. Wharton's text.

We quote from Hardin v. State, supra: "If the State proved that appellant made different statements from those sworn to on the trial of this case, then it would be permissible to show that the appellant made other statements in consonance with his statement here sworn to, * * *."

From the case of Williams v. State, 24 Texas Crim. App. 637, we quote the syllabus rather than a more lengthy paragraph of the opinion: "It is now a well settled rule of practice in this State that an impeached witness may be corroborated by proof that he had at other times made the same statements as those testified to by him on the trial, and about which he was impeached. Under this rule, it is held that the trial court erred in refusing to permit the defendant to introduce proof to support his impeached witness by showing that, prior to the trial, she made statements substantially the same as those she made on the trial and about which she was impeached."

This rule above announced has been consistently adhered to throughout the history of our early jurisprudence. We quote from Bozeman v. State, 34 Tex.Crim. Rep., 31 S.W. 389: "The appellant also contends that the court erred in refusing to permit the defendant to introduce the statement of Beulah Bozeman, the alleged injured party, made a few days after the alleged occurrence, in the preliminary examination. The State offered evidence in this case, the tendency of which was to impeach the testimony of said Beulah by showing declarations that she made, subsequent to the alleged occurrence, inconsistent with her testimony given at the trial. In such a case it was proper to have admitted the testimony taken before the magistrate in rebuttal of said impeaching testimony, and the court erred in excluding same."

The case of Campbell v. State, 35 Tex.Crim. Rep.,32 S.W. 774, holds in substance that where the prosecution has introduced testimony of contradictory statements in order to impeach a defendant's testimony on the trial, defendant has the right in rebuttal to show by other witnesses that shortly after the transaction, a homicide, he had made statements to them consistent with his testimony on the trial.

I am aware of the fact that in an opinion by Judge Brooks in the Porter case, 50 S.W. 380, the doctrine of a motive to fabricate has been applied to an accused's testimony, and therein it was held that the motive to fabricate was present because of the arrest and incarceration of the defendant at the time of the making of the self-serving declaration. The same holding also appears in an opinion by Judge Harper in the Blackburn case, 180 S.W. 268, in which he attempted to distinguish the Hudson case, 49 Tex.Crim. Rep.,90 S.W. 177. From a reading of such case I am unable to say whether or not the Hudson case was intended to be overruled. I do say that the Hudson case and further cases cited in an early paragraph hereof demand a clarification at least when read in the light of the Porter and Blackburn cases, supra, and that these two cases are the first time in our jurisprudence that I have been able to find the motive to fabricate limitation placed on this rule. That the motive to fabricate rule does not apply to an accused at least to such an extent that his self-serving declaration should be excluded as an effort upon his part to overcome an attempted impeachment by the State on a material matter, I think, is held, and I quote from the case of Hudson v. State, supra, in which Judge Davidson said: "The first bill was reserved to the refusal of the court to permit appellant to prove by District Attorney Baker that appellant testified before the grand jury that he would be 14 years of age on the 5th day of October, 1905. This assault should have occurred on the 3rd day of June, 1905. The reason for excluding this was that it was a self-serving declaration. Appellant took the stand, and testified in his own behalf that he was under 14 years of age, and that his birthday was October 3, 1905. This conviction occurred on the 28th of September, 1905. To meet this statement of appellant, witnesses Johnson and Irvine were placed on the stand, and testified that they had warned defendant, while they had him under arrest for this offense, and that, after such warning, he stated to them that he would be 16 years old his next birthday. Appellant was carried before the grand jury by the district attorney, and, when his counsel requested that they be permitted to talk and counsel with him before testifying, the court refused them permission; and he did testify before the grand jury, and among other things stated that he would be 14 years of age the following October. When he was impeached and contradicted by the statements of Johnson and Irvine, he ought to have been permitted to sustain himself by the statements made before the grand jury. These matters all occurred subsequent to the alleged transaction, and the testimony of Johnson and Irvine was used to contradict and impeach his testimony on the trial. His statement before the grand jury, then, should have been permitted to go in, to show that he had made the same statements out of court that he had made in court, and to meet the effect of the statements of Johnson and Irvine. The State also proved by Dock Wallace that defendant had told him last winter that he would be 16 years of age his next birthday. The rejected testimony was practically of the same character as that offered by the State; that is, statements of defendant contrary to his testimony on the trial. The statements made before the grand jury were confirmatory of his testimony on the trial, and practically of the same class of testimony. It should have been permitted to go to the jury, along with the impeaching statements."

I think the rule relative to a motive to fabricate should not be held to apply to a self-serving declaration upon the part of an accused because of the fact that it is palpably evident that his motive to fabricate necessarily arises at the moment the offense is committed and the res gestae ceases to operate. He could never avail himself of the rule herein sought to be invoked, and would of necessity be deprived of what has been found to be a salutory rule. The effect of a contrary holding would be to allow the exception to the rule to destroy the rule in so far as it affects an accused.

I do think, however, that such a rule relative to a motive to fabricate should be held not to apply to the accused, because of the fact that it would inevitably work an injustice upon such accused to the extent of depriving him of any attempt to fortify his impeached statement on account of the fact that his motive to fabricate was born at the same time the offense was committed.

I think that the fairer and safer rule would be that where a defendant has been impeached by a showing that he has made other and different statements than the one made by him while on the stand, then he would have the right to show that at about the same time that he was said to have made the disserving statement, he made other statements in consonance with the statement made by him on the trial of the case.

To hold otherwise I think deprives him of the right to sustain himself when impeached by statements made outside the trial of the case because of the fact that his motive to fabricate exists immediately upon the commission of the offense, and unless this rule is relaxed to the above suggested extent, he can never endeavor to retrieve his standing before the court by showing similar statements made by him corroborative of the statement made while on the stand.

I am further of the opinion that we were in error in our original opinion herein where it was held that no error was shown in bill of exceptions No. 7. I think the exclusion of Mr. Orr's testimony was error, and of sufficient gravity to cause a reversal of this cause.

I therefore respectfully enter my dissent.