Johnson v. State

• Citation: 11 S.W. 106
• Parties: JOHNSON <I>v.</I> STATE.
• Decision Date: 30 January 1889
• Court: Court of Appeals of Texas

Page 106

11 S.W. 106

JOHNSON

v. STATE.

Court of Appeals of Texas.

January 30, 1889.

Appeal from district court, Washington county; J. B. McFARLAND, Judge.

Albert Johnson, convicted of rape, appeals.

B. H. Bassett and E. B. Muse, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant's record, now before us, presents a second appeal taken by him in this case. He has twice been convicted of rape; his punishment the first time being assessed at imprisonment in the penitentiary for 99 years, and on the second trial, from which this appeal is taken, there is an assessment of the death penalty as his punishment. Johnson v. State, 21 Tex. App. 368.

In the view we take of the present record, and the duty devolving upon us as to the disposition to be made by us of the case here presented, it is unnecesssary, and would perhaps be profitless, to notice the questions arising upon the rulings of the court in relation to matters occurring preliminary to the trial upon its merits, since it is not probable that they will again arise upon another trial. One of the most important issues which arose upon the trial in the court below was as to the identity of the defendant as the party who committed the crime. While the prosecutrix had sworn positively to the identity of the defendant as the man who ravished her, she said nevertheless as positively that "if this man [defendant] had a mustache on the 26th day of January, 1886, [the day she was ravished] then he is not the man that ravished me." On this issue, thus squarely made, defendant produced a number of witnesses, white as well as black, and some of them men of prominence, whose testimony was almost positive to the fact that defendant did wear a mustache on the 26th day of January, 1886. And the same may be said with reference to the difference in the clothing worn by the ravisher and that worn by defendant. In other words, and in short, the effort of the defendant was to meet every part and portion of the testimony of the prosecutrix descriptive of the identity of the party who outraged her, and to show that it was a case of mistaken identity with her, and that it was impossible he could have been the guilty party. In this attitude of the case the state, over the objection of defendant, was permitted to cross-examine defendant's witness Ford, as follows: "Question by the State. Did you not, after the rape of Annie Knuppel, receive a letter from the defendant inquiring of you about the commission of said rape, who was suspected of it; and if he was accused of its commission? Answer. I never at any time received a letter from the defendant, after or before said alleged rape; nor did I receive any letter from him inquiring of its commission, or asking if he was accused of it. Q. Did you not, after said rape, receive a letter purporting to come from defendant, making a statement about the rape, or inquiring if defendant was accused of it? A. I never received any letter from defendant, or from any one else, or purporting to come from defendant, making a statement about the rape, or inquiring if defendant was accused of it. I do not read or write. I do not know defendant's handwriting. Q. Did you not, in Brenham, after said rape, request Wash Bolding, Jr., to read a letter for you, and did he not then read to you a letter from the defendant to you in which defendant stated that he had committed the rape, and inquiring of you who was suspected of its commission, and if he was accused of it? A. No. Wash Bolding never read any such letter for me, nor any other letter for me, either after the rape or before it. I never received such a letter, or any letter, from defendant, or any one else, in reference to the rape. Never received any letter from defendant, or purporting to be from him, after he left my house, — after the alleged rape." Which testimony was objected to by the defendant at the time it was offered on the grounds: (1) That the letter, (if such ever existed,) was the best evidence; that no effort had been shown by the state to procure or produce such letter upon the trial or prove its loss; and that the testimony was secondary. (2) That the testimony was inadmissible, because the execution of the letter in defendant's handwriting had not been shown, and no promise upon the part of the state was made to show such fact. (3) That said testimony was illegal, and irrelevant to the issue of defendant's guilt, and was prejudicial to the defendant. But the court overruled said objections and admitted said testimony to the jury, to which decision of the court the defendant then duly excepted; and thereafter the defendant moved the court to strike out said testimony, and instruct the jury to disregard the same for the reasons and upon the grounds above alleged. But the court overruled said motion to strike out, and refused to exclude said evidence from the jury; to which decision of the court the defendant then excepted, etc.

Manifestly, the object of this method of examination of the witness was to impress the jury with the idea that the witness had received a letter from defendant, in which the latter confessed that he had committed the crime. If the object was to prove the fact that such a letter had actually been written and received, then the proper practice would have been, in the first place, to have summoned the witness with a subpœna duces tecum, or notice to produce the letter in court. 1 Greenl. Ev. (13th Ed.) §§ 557-560. Failing or refusing to produce it, the state might then have proved the fact by him, if a fact, that he did receive a letter; and if the witness knew that defendant wrote it, from his knowledge of his handwriting or otherwise, he might also prove that fact. But unless the letter was lost or mislaid, so that it could not be produced, its contents even then could not be proved by the parol evidence of the witness; the letter itself being the best evidence of its contents, so long as it was in existence. Again, if the object was to impeach the witness, then the fact that he had or had not received a letter from defendant, — which was the only fact about which the preliminary inquiry and predicate were allowable, (Walker v. State, 6 Tex. App. 577,) — would be wholly immaterial in the case. And, the witness having answered that question in the negative, that would be an end of the investigation,...