Askew v. State

• Decision Date: 19 April 1910
• Citation: 127 S.W. 1037
• Parties: ASKEW v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 1037

ASKEW v. STATE.

Court of Criminal Appeals of Texas.

April 19, 1910.

Appeal from District Court, Hopkins County; R. L. Porter, Judge.

Frank Askew was convicted of manslaughter, and he appeals. Reversed and remanded.

Templeton, Craddock, Crosby & Dinsmore and C. E. Sheppard, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of manslaughter, and given two years' confinement in the penitentiary.

This is the third appeal of this case. The first appeal is found reported in 47 Tex. Cr. R. 362, 83 S. W. 706, and the second appeal is found in 54 Tex. Cr. R. 414, 113 S. W. 287. We deem it unnecessary to go into a statement of the case further than shown by the former appeals, and such as may be involved in the disposition of the matters presented. We shall content ourselves in following the brief of appellant in reviewing the questions presented for discussion.

1. The first error complained of is found in bill of exception No. 2, practically as follows: While appellant was testifying in his own behalf, and while he was being cross-examined, the district attorney was permitted to elicit from him the following facts: That on the night of the killing Arthur Lewis, Walter Lewis, Al Williams, Bennie Edwards, and Bias Jackson were all present at the crap game at the time the difficulty which resulted in the killing began; that Arthur and Walter Lewis are appellant's first cousins; that none of said witnesses are now present in court; that all of them were present and testified for the state at the first trial of the case, and none of them had ever been present at any other term of the court when the case was called for trial, or had ever again testified; that he does not know where either of said witnesses are, and has not tried to get them here, or to locate them and take their depositions. Various objections were urged to this testimony, and the court approves the bill with the following explanation: "I considered that the district attorney had a right to show that the absent witnesses had been in attendance upon this court in the trial of this case, and I considered that he had a right to ascertain, on cross-examination of defendant, whether or not he knew of their present whereabouts. The testimony showed that all the parties who were present at the crap game were absent, except Jim Rockwall and John Smith, and I considered that the district attorney had a right to show, on cross-examination of defendant, whether he had ever made any effort to secure the attendance at court of any of the eyewitnesses to the killing. The fact that reference was made to a former trial in the examination could not have injured defendant, because the jury already knew of the former trials. The attorneys, when securing the jury, asked a number of men on the panel if they had heard any of the former trials of the case. Some of them had, and were stood aside and excused by the court, because they had formed opinions from what they had heard of the former trials; also, prior to the examination of defendant, reference had been frequently made by both defendant's counsel and the district attorney, in laying predicates for impeachment purposes, to the former trials of the case. The evidence showed that the absent witnesses inquired about were present and testified at the first trial of this case." We are of opinion that this evidence was inadmissible. Practically, this question was decided adversely to the state, and formed a basis of reversal on the second appeal, as reported in 54 Tex. Cr. R. 414, 113 S. W. 287. Under this bill of exception, it would seem it is made to appear that the witnesses attended a former trial of the case, and they were state witnesses. Appellant was not chargeable with the absence of state witnesses, nor would he be chargeable with the absence of any witness from the trial, unless there was something to show that he had been instrumental in keeping them...