Bennett v. State

• Decision Date: 22 October 1887
• Citation: Bennett v. State, 5 S.W. 527 (Tex. App. 1887)
• Parties: BENNETT v. STATE.
• Court: Texas Court of Appeals

5 S.W. 527

BENNETT v. STATE.

Court of Appeals of Texas.

October 22, 1887.

Appeal from district court, Johnson county; J. M. HALL, Judge.

This conviction was for the larceny of Thomas Sparks' heifer yearling, and the penalty imposed by the jury was a term of two years in the state penitentiary. The state proved, in substance, the defendant's confession that he placed his own brand upon Sparks' yearling, but his declaration that he did not steal, but bought it from one Goodspeed, and his request to Sparks not to institute criminal proceedings in the matter until he could recover his purchase money from Goodspeed. One Grafa testified for the state that defendant took the yearling from his possession under a claim of ownership, but said nothing at the time about having bought it. Goodspeed was placed on the stand by the state, and denied that he sold the yearling to the defendant; and, further, that, after his arrest, the defendant importuned him to admit, and to testify on the trial that he did sell the yearling to the defendant. On his cross-examination Goodspeed admitted he was charged by complaint with the theft of the yearling, and escaped arrest by flight. Three witnesses testified for the defense that they witnessed a transaction between defendant and Goodspeed, which resulted in the defendant's purchase from Goodspeed of the yearling which he (Goodspeed) then had in his possession.

Poindexter & Padelford, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

By article 755, Code Crim. Proc., it is provided that "the rule that the party introducing a witness shall not attack his testimony, is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness." On the application of this change of the rule to any particular case, the question is, did the witness state facts injurious to the party calling him as a witness? Tyler v. State, 13 Tex. App. 205; Thomas v. State, 14 Tex. App. 70. In other words, before the rights awarded by the statute can be availed of, some statement must have been made by the witness injurious to the cause he was called to testify in behalf of. It is not sufficient that the witness makes a statement different from what the party calling him had reason to believe and did believe he would make, if the statement made is not injurious.

By the bill of exceptions in this case it is shown that the prosecution had placed one Hardy Kyle on the stand as a witness for the state, and on his direct examination he stated: "I never heard the defendant say anything about the Sparks yearling." This is in full all the statement made by him. Does it appear that this statement was injurious to the state or any one else? If so, then any negative answer to a question propounded when an affirmative was desired, and vice versa, might be claimed to be injurious.

After the witness had so stated, over the objection of defendant, the court permitted the prosecution with avowed purpose to first lay a predicate, and then introduce evidence to impeach its witness by proving that said witness had, on another occasion, stated to counsel for the prosecution "that defendant had tried to hire him (witness) to go before the grand jury, and testify for him in this cause, and that he had offered to hire him to testify before the jury, and that he was so drunk when before the grand jury that he did not know what he then swore." In our opinion, a proper and sufficient case in which the impeachment of one's own witness would be allowable is not established by the facts shown. A case of surprise at testimony other than that expected and calculated upon is perhaps shown. But there is a well-defined difference in the rules with reference to surprise and impeachment. "A party bona fide surprised at the unexpected testimony of his witness may be permitted to interrogate the witness as to his previous declarations alleged to have been made by the latter, inconsistent with his testimony, the object being to probe the witness' recollection, and lead him, if mistaken, to review what he has said. Such corrective testimony is also receivable to explain the attitude of the party calling the witness. But when the sole object of the testimony so offered is to discredit the witness, it will not be received." White v. State, 10 Tex. App. 381, quoting 1 Whart. Ev. § 549. The ruling complained of was erroneous, and it can be readily imagined how the testimony admitted to impeach the state's witness Kyle, even had it been pertinent to the issue raised, which is not made apparent, was most prejudicial to the rights of this appellant.

Before finally disposing of the case it may be well to consider the third bill of exception, which, in so far as we are advised, submits a question never heretofore adjudicated in this state. When defendant called his father, Richard Bennett, as a witness, he was objected to by the state because of incompetency, in that he had been convicted and incarcerated in the penitentiary for a felony. Penal Code, art. 730, subd. 4. To this the defendant replied that the witness had been legally pardoned for said offense, and produced the governor's full charter of pardon. The objection was properly overruled, and the witness testified. Afterwards, in argument to the jury, when counsel for the prosecution were insisting that, notwithstanding the pardon, the witness was entitled to no credit on account of his former conviction, defendant objected to such line of argument as illegal and unwarranted, and asked...