Mayes v. State , 33 Tex. Crim. 33 ( 1893 )

Appellant was convicted of murder in the second degree and his punishment assessed at five years, from which he appeals.

1. Appellant complains that the court erred in not requiring the State to place three witnesses on the stand who were shown by the testimony to be present during the quarrel and subsequent homicide. There is nothing in the proposition, certainly, as applied to this case. In the first place, there were eye-witnesses placed on the witness stand by the. State; and in the next place, to require the State to put all such Witnesses on the stand, and thereby vouch for their credibility, without regard to their interest, bias, or character of testimony, would compel the State to offer testimony often utterly contradictory, and deprive her of the right of attacking the character of such witnesses, however notoriously bad. It appears that in this case the witnesses in question were the son-in-law and intimate friends of appellant. If their testimony was advantageous to appellant, we can not see why he did not introduce them.

2. The appellant further complains of the remarks of the district attorney in his closing speech, who asked why appellant did not place the aforesaid witnesses on the stand, as one was the son-in-law and the others were intimate friends of appellant. It seems that after the court overruled the motion of appellant to compel the State to put the said witnesses on the stand the appellant also refused to put them on, and the district attorney commented on the fact. We may infer that they were the appellants' witnesses, summoned by him, and he refused to examine them, and the district attorney had the right to call attention to the fact; and, even if they were not summoned by appellant, we see no impropriety in the argument.

3. Appellant further complains that, in his charge on murder in the first degree, the court erred in submitting to the jury whether there was any previously existing grudge or enmity between the parties, as there was nothing in the evidence suggesting anything of the kind. The jury having found by their verdict that there was no express malice and the lowest penalty inflicted, the charge was obviously harmless. Green's case,32 Tex. Crim. 298. Again, while there was a general exception to the entire charge on murder in the first and second degrees as not required by the evidence, there was no special exception to the portion of the charge now complained of as error. Quintana's case, 29 Texas, Crim. App., 401.

4. Appellant further complains that the court erred in not permitting him to ask certain witnesses, who had testified that the reputation of Frank Johnson for truth and veracity was bad, the further question, "From that general reputation, is he worthy of belief on oath?" In the impeachment of a witness the question to be ascertained is the general reputation of the witness for truth and veracity in his community, and this should be ascertained through impeaching witnesses, without eliciting their private opinions. What is the proper form of inquiry has been the subject of much discussion. This court has held, on the authority of Boon v. Weathered, 23 Tex. 686, that where the impeaching witness states that he knows the general reputation for truth and veracity of the person sought to be impeached, he may then be asked whether that reputation is good or bad, or he may be asked "whether that general reputation is such as to entitle the witness to credit on oath." Willson's Crim. Stats., sec. 2513; Griffin v. The State, 26 Texas Crim. App., 157. In the case of Johnson v. Brown,51 Tex. 77, the Supreme Court, also on the authority of Boon v. Weathered, declare that the only proper questions to be propounded to the witness are, "whether he knows the general character or reputation of the witness intended to be impeached in point of truth, among his neighbors." If so, then what is that character — good or bad? These questions were asked, and answered by the witness, and we think were sufficient, and were the proper questions.

5. Appellant asks a new trial on the ground of prejudice and bias on the part of R.A. Center, a juror who tried the case. The evidence shows that Center and one Burks were traveling to Belton; that Center was summoned as a special venireman in four cases, including the Mayes case, and Burks was also a venireman. Some conversation ensued between the parties, in which Center said "he lived so far in the country that he would have to remain until all the venires were called, and he hoped he would be taken on some case to make expenses." But Burks said that Center further said, "Mayes ought to have his d__n neck broke." This Center denies, and says that his remark was "they would keep hauling him on the jury until he would get a chance to help break some one's neck." Without undertaking to settle what was said, it is uncontradicted that Center did not know appellant or deceased, nor the facts of the case, and his remarks were, no doubt, jocular or misunderstood. The juror is shown to be an upright and honorable man by the impeaching witness. Verdicts solemnly rendered under oath are not to be lightly set aside because of some casual remark made by one before being impanelled as a juror, where no prejudice is otherwise shown to exist.

6. While the evidence is conflicting, and many witnesses testified to inconsistent facts, yet we think there is sufficient testimony to sustain the conviction, and it is affirmed.

Affirmed.

Judges all present and concurring.