McCullar v. State

• Decision Date: 17 June 1896
• Citation: 36 S.W. 585
• Parties: McCULLAR v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 585

McCULLAR v. STATE.

Court of Criminal Appeals of Texas.

June 17, 1896.

Appeal from district court, Wilson county; Thomas H. Spooner, Judge.

Fred McCullar was convicted of seduction, and appeals. Reversed.

B. F. Ballard, T. P. Morris, and A. J. Williams, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of seduction, and given two years in the penitentiary, and prosecutes this appeal.

1. There is nothing in appellant's motion to quash the indictment in this case. It follows the statutes, and is in accordance with Willson's form on the subject.

2. On the trial of this case, the defendant introduced Eliza McCullar to prove that Anna May Lindsey was not a woman of virtuous character. Said witness testified on her direct examination that she knew the general reputation of Anna May Lindsey in the community in which she lived as a woman of virtue and chastity, and that such reputation was bad; and afterwards, on her cross-examination by the state, she testified that she had heard different ladies in the neighborhood speak disparagingly of her conduct as early as April, 1893. She also stated that she had "heard it said, a half dozen or more times, that Anna May Lindsey would not do, and that her language was rough, and her manner rude, and did improper things with men." On further examination, this witness stated that she never heard any person say she was not a virtuous woman. The state then objected to said testimony, and asked to have it excluded from the jury. The court excluded the same, and the defendant reserved his bill of exceptions thereto. This bill of exceptions appears in the record, but it is not approved by the trial judge. The evidence appears to have been admissible, but, as the bill is not approved, we cannot consider it.

3. The state introduced one Chase as a witness, who testified that the reputation of Anna May Lindsey for virtue and chastity was good in the community in which she lived. On cross-examination, the said witness stated that he had never heard any one speak of the reputation of said Anna May Lindsey in that respect. Thereupon the defendant objected to said testimony, and asked that the same be excluded. The court thereupon overruled the objection of appellant, and in that connection remarked: "The authorities agree, and the courts have held, that there is no higher evidence of the good character of a person than that it was never discussed. That fact is the very best evidence of good character." Appellant objected to the remark made by the court in connection with the exclusion of said evidence, and saved his bill of exceptions thereto. It may be true, as stated by the court, that a witness may be qualified to speak of the general reputation of a person as to some quality without having heard the person's character in that respect discussed. But in this case, the character of the prosecutrix for chastity was a direct issue in the case, and for the court to remark, in the presence of the jury, in passing on the admissibility of such testimony, that the fact that the witness had never heard the reputation of the prosecutrix in that regard discussed was the very best evidence of her good character in that respect, was a remark upon the weight of...