Cogdell v. State

• Citation: 63 S.W. 645
• Parties: COGDELL v. STATE.
• Decision Date: 12 June 1901
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

63 S.W. 645

COGDELL v. STATE.

Court of Criminal Appeals of Texas.

June 12, 1901.

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

Alf Cogdell was convicted of manslaughter, and he appeals. Reversed.

Wear, Morrow & Smithdeal and Spell & Phillips, for appellant. J. E. Clark, 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 manslaughter, and his punishment assessed at two years' confinement in the penitentiary.

Appellant, during the trial, put Sid Huddleston on the stand, and proved by him a threat on the part of deceased against defendant, made on the evening of the homicide, only a short time before it occurred. On cross-examination the county attorney was permitted to ask said witness if he did not, at a certain time and place, subsequent to a former trial of the case, state to Charley Cleveland "that they had not done him right; that, after he had accommodated them, and swore what he did to get a new hearing, by God, they went square back on him, and did not do what they agreed to do; and, if they put him back on the stand, he would tell the truth about it, and, if they asked the right questions, he would fix Alf." The witness denied that he had made any such statement. The state was then permitted to prove by Charley Cleveland that at the time and place mentioned said witness Huddleston made to him the statement as set out above. Appellant objected to the cross-examination of his witness Sid Huddleston, and then objected to the introduction of the witness Cleveland. His objections were on the ground that it was an attempt to lay the predicate to impeach his witness Huddleston upon an immaterial and collateral issue, and that said testimony involved a mere matter of opinion, and not any fact which would go to the impeachment of the witness; and that such testimony would not be admissible as an original part of the case; and, furthermore, that it was an inquiry involving an agreement, and it was not shown that defendant had knowledge of such agreement, or was in any wise privy thereto. The court overruled these objections, and admitted the testimony, and explains the bill of exceptions by showing that he limited the testimony to the impeachment of the witness Huddleston in the charge of the court. It is a general rule that a witness can only be impeached by contradictory statements showing that he made a statement in regard to some fact or facts testified to by him on the trial at another time and place different from his evidence at the trial. But this testimony does not appear to come within that rule. It does not embody a traverse of any fact sworn to by the witness on the trial. Indeed, it is not the statement of any fact at all, but the statement of a conclusion, from which it might be inferred that the witness knew some facts that would be exceedingly detrimental to appellant; in other words, that such facts, in the opinion of the witness, would fix appellant, — evidently meaning they would convict him. The matter was not only collateral, but it was a mere opinion of the witness; such opinion, however, as might prove with the jury very damaging to appellant. It occurs to us that this testimony was illegal, and comes clearly within the rule laid down in Drake v. State, 29 Tex....