Ballew v. State, 19981.
| Decision Date | 25 January 1939 |
| Docket Number | No. 19981.,19981. |
| Citation | 125 S.W.2d 295 |
| Parties | BALLEW v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Hall County; A. S. Moss, Judge.
Raymond Ballew was convicted of assault with intent to murder, and he appeals.
Judgment reversed and cause remanded.
Jas. C. Mahan, of Childress, and Robert Harrison, Marvin B. Simpson, and Harris Brewster, all of Fort Worth, for appellant.
John Deaver, District Atty., of Memphis, and Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is assault with intent to murder; the punishment assessed is confinement in the state penitentiary for a term of four years.
The record shows that about 8 P. M. on November 10, 1937, officers, armed with a search warrant, went to the appellant's residence to make a search for whisky. Appellant and his wife resided in the second story of a garage. When the officers arrived, they found the doors and windows locked but heard someone in the building and asked to be admitted. Receiving no response to their request, they broke a glass in one of the windows with a view to unlatching a window. Suddenly a shot was fired from behind a telephone pole some 70 feet from the garage. This shot struck one of the officers. They returned the fire and a second shot from the vicinity of the telephone pole struck another officer. After the second shot, they saw a person run from behind the pole into an alley and recognized this person as the appellant. After he had disappeared, one of the officers remained at the garage while another carried one of the wounded men to a doctor. During their absence, the one who remained at the residence heard breaking of glass inside the apartment and something which sounded like water running down a sewer pipe. A short time later, more officers appeared and they entered the building, finding a number of broken whisky bottles in the bathroom and some whisky in the bathtub.
Owing to the disposition which we are forced to make of the case, it will be necessary to discuss at length only one bill of exception. Bill No. 3 reflects the following occurrence. Edd McCreary, one of the officers, had testified that he saw appellant shoot from behind the telephone pole and saw him running away from the telephone pole to an alley. That he recognized him as being the appellant. On cross-examination, he was asked if he had not had a conversation with C. E. Bentley at his (Bentley's) place of business in the town of Memphis about a week or ten days after the alleged shooting and if, in that conversation, Bentley had not asked him if he knew who had done the shooting and if he, the witness, had not answered: "I don't know."
The state objected to this question and the court sustained the objection, declining to permit the witness to answer the question. Appellant excepted and stated that the question asked and the answer sought to be elicited was for the purpose of laying a predicate for the impeachment of the witness. Thereafter appellant placed Bentley on the stand and inquired of him concerning the conversation above outlined. The district attorney again objected to said question on the grounds that it was an attempt to impeach the witness, McCreary, and that no proper predicate had been laid therefor. The court sustained the objection and declined to permit the witness to answer the question to which action appellant excepted. The bill recites that if the witness had been permitted to answer the question, he would have answered that McCreary had told him that he did not know who did the shooting. The court's qualification states that it was not shown what answer the witness McCreary would have made to the question.
It is our opinion that the trial court erred in sustaining the state's objection. If McCreary had answered that he did state to Bentley that he did not know who did the shooting, then there would have been no necessity for laying a predicate for impeachment; he would, in fact, have been impeached by his answer. If he had answered the question in the negative, the proper predicate for impeachment would have been laid and the testimony of Bentley would have become material. It was a highly controverted issue as to whether the party who did the shooting was or was not the appellant. Indeed, it was his entire affirmative defense, he having testified on the stand, denying that he did the shooting or that he was at the place at the time it occurred. The court's qualification to the bill does not in any manner alleviate or obviate the error, for the court declined to permit appellant to lay the proper predicate for impeachment. See Novakovitch v. State, 126 Tex. Cr.R. 32, 70 S.W.2d 175; Brooks v. State, 130 Tex.Cr.R. 134, 93 S.W.2d 447, 450; Turney v. State, 9 Tex.App....
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Correa v. State
...543 S.W.2d 93 (Tex. Crim. App. 1976), overruled by Bates v. State, 587 S.W.2d 121, 143 (Tex. Crim. App. 1979), and Ballew v. State, 125 S.W.2d 295 (Tex. Crim. App. 1939). The holding relied upon from Montemayor—that "when a witness in a criminal case testifies about a specific fact or event......
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Stanley v. State
...charge in 1936, a more serious question would have been presented. See White v. State, 57 Tex.Cr.R. 196, 122 S.W. 391; Ballew v. State, 136 Tex.Cr.R. 181, 125 S.W.2d 295; Cawthon v. State, 114 Tex.Cr.R. 86, 24 S.W.2d 435. Appellant cites us to the case of Oates v. State, 67 Tex.Cr.R. 488, 1......
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Ballew v. State, 19980.
...punishment assessed is confinement in the state penitentiary for a term of two years. This is a companion case to that of Raymond Ballew v. State, 125 S.W.2d 295, this day decided by us. The facts proved in this case are in all essential respects similar to those proved upon the trial of th......