Barham v. State, 18205.
| Decision Date | 22 April 1936 |
| Docket Number | No. 18205.,18205. |
| Citation | 93 S.W.2d 741 |
| Parties | BARHAM v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Kerr County Court; John S. Atkins, Judge.
Guy Barham was convicted of willfully killing a mule with intent to injure the owner, and he appeals.
Reversed and remanded.
Joe Burkett, Jr., of Kerrville, and Joe Burkett, of San Antonio, for apellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is willfully killing a mule with the intent to injure the owner; the punishment, a fine of $10.
Some mules were shot on the night of July 6, 1935, and died shortly thereafter. There was testimony to the effect that it was common for people in the vicinity to hunt deer at night. There was no testimony connecting appellant with the commission of the offense, except the written statement of his son, Cecil Barham, who, shortly after the killing of the mules, had been arrested and placed in jail. While in custody he made a statement which incriminated his father. When placed upon the witness stand by the state, he repudiated that part of the statement incriminating his father, and gave testimony to the effect that he knew nothing about the transaction. Counsel for the state admitted that they had talked to the witness before placing him on the stand, and that he had repudiated his statement. In short, the bill of exception complaining of the introduction of the statement shows conclusively that counsel for the state were not surprised at the testimony the witness gave and were aware that he would repudiate his statement when called upon to testify. Also, it is certified in the bill of exception that the state was permitted to introduce said statement as original testimony.
In article 732, C.C.P., it is declared that the rule forbidding one to attack the testimony of his own witness "is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness." It is the uniform holding of this court that when the state introduces a witness, it cannot attack his testimony unless the witness has stated facts injurious to the state's case. The mere failure of a witness to give testimony favorable to the state does not authorize his impeachment. Heffernarn v. State, 98 Tex.Cr.R. 553, 266 S.W. 507, and authorities cited. Again, it is the rule that the state will not be permitted...
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Wall v. State, 40473
...the trial had informed State's counsel that he was mistaken such witness could not be impeached by such statement. See Barham v. State, 130 Tex.Cr.R. 233, 93 S.W.2d 741; Odneal v. State, 117 Tex.Cr.R. 412, 36 S.W.2d Still further, it is well recognized that evidence of the results of a poly......
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...Royal Insurance Co. v. Eastham, 5 Cir. 71 F.2d 385, 388; Odneal v. State, 117 Tex.Cr.R. 412, 36 S.W.2d 1020; Barham v. State, 130 Tex.Cr.R. 233, 93 S.W.2d 741; c/f Blochowitz v. Blochowitz, 122 Neb. 385, 240 N.W. 586, 82 A.L.R. 955; Kuhn v. U. S., Neither, even where there is a real surpris......
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