Campbell v. State

• Decision Date: 13 April 1910
• Parties: CAMPBELL v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W. 607

CAMPBELL v. STATE.

Court of Criminal Appeals of Texas.

April 13, 1910.

On Motion for Rehearing, June 14, 1911.

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

John Campbell was convicted of crime, and he appeals. Reversed and remanded.

Sam D. Stinson, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The Assistant Attorney General has filed a motion to dismiss the appeal because the recognizance is defective.

The recognizance does not state the amount of the punishment assessed against appellant as required by article 887, C. C. P. 1895. The recognizance being defective, the motion is sustained. See May v. State, 40 Tex. Cr. R. 196, 49 S. W. 402.

The appeal is dismissed.

On Motion for Rehearing.

HARPER, J.

Appellant was indicted for assault with intent to rape, and was convicted of an aggravated assault and his punishment assessed at a fine of $250 and six months imprisonment in the county jail.

This case at the last term of this court was dismissed because of insufficient recognizance. Appellant within the time permitted by law filed a new recognizance, and this case has been pending since said date. The testimony for the state would show that on or about the 30th of April, 1909, appellant, while his wife was confined to her bed, instructed his stepdaughter, Lizzie Little, a 13 year old girl, to go to the smokehouse and get some molasses for dinner. She says he followed her in the smokehouse, closed the door, made indecent proposals to her, and attempted to pull up her dress; that he kept her in the smokehouse about half an hour, when those in the house became uneasy about the length of time she was staying, called her, and at last her half-brother came for her, when appellant opened the door and let her go. Her mother's brother shortly thereafter came for her, and without the knowledge or consent of her stepfather (appellant) carried her away to his home. She is corroborated in some details by a lady staying in the house at the time.

Appellant denies any improper conduct, or that he ever sought to rape his stepdaughter, and contends that his treatment of her had always been kind, and some of the neighbors testify that appellant treated his stepdaughter as well as he did his own children. There was a great deal of impeaching and corroborative testimony, but the above presents the issue in the case.

1. Bills of exception Nos. 1, 2, and 4 are not in the record; therefore the matters assigned on them as a basis cannot be considered.

2. In bill of exception No. 3 complaint is made of the state being permitted to ask the prosecuting witness the question: "Did he say anything about giving him some?" The witness was but a child, and the record shows she was crying, and the state had in a measure to coax her to give testimony. Taking into consideration the age of the child, and the circumstances of the trial, we do not think the court erred in permitting the question to be asked, even though it is leading in its nature.

When a person is of immature years, and laboring under excitement, etc., leading questions may be permitted by the court, and this is a matter left largely in the discretion of the court trying the cause. Harris v. State, 37 Tex. Cr. R. 441, 36 S. W. 88.

3. The court did not err in not permitting the witnesses to state what Ephriam Poindexter had said to them on different occasions when neither the defendant nor prosecuting witness were present. Poindexter was not a witness in the case, and neither the state nor defendant had sought to make him a witness, so far as the record discloses.

Neither was there any error in not permitting witnesses to state the contents of a letter from Poindexter to appellant. The letter was the best evidence, and, in the absence of proof of its destruction or loss, contents thereof could not be proven by a witness who claimed to have read it. This also applies to the letter from Mrs. Poindexter as complained in bill No. 7. Before a witness who has read a letter will be permitted to testify as to its contents, some reason must be given for its nonproduction. So far as the record discloses, these letters were in the possession of defendant, and they would be the best evidence.

4. Complaint was made about the admissibility of a conversation had between prosecuting witness, Lizzie Little, and Mrs. T. D. Campbell, in which conversation she in a few days after the occurrence had detailed to Mrs. Campbell the transaction in substance as she testified to on the trial of this case. The defendant had sought to impeach Lizzie Little by her mother in regard to this matter, and this rendered the testimony of Mrs. Campbell admissible. Kimball v. State, 37 Tex. Cr. R. 230, 39 S. W. 297, 66 Am. St. Rep. 799.

5. Complaint is made in bill of exception No. 14 that the court instructed the jury "that they would pay no attention to and wholly disregard any statement by counsel about any letter, except the letter of Mrs. Gould, as there was no other letter in evidence." The court, in approving this bill, says defendant's attorney had been discussing before the jury contents of letters not in evidence. It is proper for the court to limit the argument to the evidence adduced on the trial, and it is proper for him to so conduct the case as to keep from the jury all matters not admitted in evidence, and to instruct them not to consider such matters if counsel inadvertently or intentionally seeks to bring such matters to their attention.

6. Appellant also complains of the argument of counsel for the state, when he said: "Gentlemen of the jury, one of the best doctors in this county examined Mrs. John Campbell to-day and reported to this court that she was able to come to court and testify. Two officers of the court took her from her room and brought her to the court in a rocking chair, and paid the expenses of bringing and taking her back to the house." The court, in approving this bill, says: "When this case was called for trial, defendant made a motion for continuance, setting out as one of the grounds of same that he expected to prove some very material facts by his wife, Mrs. John Campbell, and that she was unable to attend court on account of her physical condition. The motion was overruled, and during the trial of the case I sent a physician to the home where Mrs. Campbell was stopping to examine her and see whether she was able to be brought to court. He reported that she was not confined to her bed and was able to be brought to court. Whereupon I sent two deputy sheriffs for her and had her brought to the courthouse in a carriage. When she testified in the case, I had her taken home. One of the attorneys for the defendant in his argument criticised the officers of the court very severely for having the woman brought to court, among other things saying, `Defendant preferred to take his chances before a jury without the testimony of his wife rather than to drag her out of a sick bed to testify for him.' `The officers of this court had gone to the woman's sick bed and dragged her to the courtroom when they knew that she was unable to be brought out.'" When defendant's counsel discusses matters outside of the record, they cannot be heard to complain when the court permits opposing counsel to reply. All of this was improper in the absence of any testimony before the jury as to Mrs. Campbell's condition; but, the defendant having first referred to these extrinsic matters, he ought not now be permitted to complain when the objectionable remarks were in direct response to his criticisms.

In addition, no special charge was requested asking the court to instruct the jury not to consider such argument, and, in the absence of a requested instruction, we will not review the matter further, and hold it presents no error for which the case should be reversed. Levine v. State, 35 Tex. Cr. R. 649, 34 S. W. 969, and cases there cited.

7. There is a bill of exception in the record that presents a serious question, and one which has been discussed in a number of our decisions; and that is: When a defendant takes the stand to testify in his own behalf, upon what matters and to what extent may he be cross-examined on matters affecting his credibility as a witness?

It seems well settled by all of our decisions that he is subject to the same cross-examination as any other witness. Monticue v. State, 40 Tex. Cr. R. 531, 51 S. W. 236; Hutchins v. State, 33 Tex. Cr. R. 299, 26 S. W. 399, and cases cited. And that he may be asked about being indicted or convicted of offenses involving moral turpitude or of the grade of felony, and be discredited and impeached by proof of conviction of such offenses, if recent. Hutchins v. State, 33 Tex. Cr. R. 299, 26 S. W. 399. But the question here presented is: Can he be cross-examined on a matter about which he has not been indicted, and the question does not indicate a state of affairs for which he could be...