Bennett v. State

• Decision Date: 22 June 1901
• Citation: 64 S.W. 254
• Parties: BENNETT v. STATE.
• Court: Texas Court of Criminal Appeals

64 S.W. 254

BENNETT v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1901.

Appeal from district court, Hill county; W. Poindexter, Judge.

J. A. Bennett was convicted of murder, and appeals. Reversed.

Wear, Morrow & Smithdeal and Nelson Phillips, for appellant. Geo. I. Jordan, D. A. McFall, Walter Collins, D. Derden, B. Y. Cummings, C. F. Greenwood, Co. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

This is the second appeal. The facts on this appeal are substantially the same as in the former. 39 Tex. Cr. R. 639, 48 S. W. 61. Appellant assigns as error the action of the court in failing to limit certain testimony to the effect that appellant had been indicted and prosecuted for other felonies to the purpose for which it was introduced, to wit, as going to the credit of appellant as a witness. It is shown that appellant took the stand as a witness on his own behalf, and on cross-examination by the state it was proved that he had been indicted for horse theft and cattle theft in Johnson county, and for cattle theft in two or three cases in Bosque county, and for train robbery in Hill county. On re-examination it was shown that he was convicted in two cases, and, new trial being granted, was subsequently acquitted; and the others were either dismissed against him or he was acquitted. These indictments were presented against defendant about 10 years before the indictment in this case. On the trial the court utterly failed to limit this testimony. It is contended that this is such error as to cause a reversal of this case. Before the act of March 12, 1897 —being article 723, White's Ann. Code Cr. Proc.,—the failure to limit testimony introduced for the purpose of impeaching or discrediting a witness, which could be used by the jury for any other purpose detrimental to defendant, was fundamental error, which would cause a reversal of the case, whether excepted to or not. Since the passage of said article the same rule applies, "provided the failure to so charge the jury is taken advantage of by bill of exceptions at the time or in motion for new trial." Paris v. State, 35 Tex. Cr. R. 82, 31 S. W. 855; Owens v. State, 35 Tex. Cr. R. 345, 33 S. W. 875; Martin v. State, 36 Tex. Cr. R. 125, 35 S. W. 976; Wilson v. State, 37 Tex. Cr. R. 374, 35 S. W. 390, 38 S. W. 624, 39 S. W. 373; Estill v. State, 38 Tex. Cr. R. 255, 42 S. W. 305. Unquestionably, said testimony was admissible for only one purpose; that is, as going to the credit of appellant as a witness. Carroll v. State, 32 Tex. Cr. R. 431, 24 S. W. 100; Brittain v. State, 36 Tex. Cr. R. 406, 37 S. W. 758. But, without an instruction on the subject, would the jury confine their consideration of said testimony to that purpose alone? Would they know the object of its introduction? It must be remembered that juries are, for the most part, unacquainted with the rules of law; and therefore the necessity on the part of the court to instruct them with reference to their duties. Of course, if they knew this was...