Dempsey v. State, 26912

Decision Date07 April 1954
Docket NumberNo. 26912,26912
PartiesDEMPSEY v. STATE.
CourtTexas Court of Criminal Appeals

Stafford & Alcorn, by John M. Stafford, Kingsville, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

WOODLEY, Judge.

The conviction is for murder; the punishment, 99 years in the penitentiary.

Appellant admittedly killed the deceased, Henry Stewart, by stabbing him with a knife. He testified that he acted in self-defense, believing that the deceased, who he knew had recently cut his nephew's throat, had a pistol or knife and was about to attack him.

Appellant filed an application for a suspended sentence and testified as a witness in his own behalf. His reputation was therefore put in issue. Under well-established rules of evidence the state was entitled to show that his general reputation as a peaceable and law-abiding citizen was bad, and also to prove recent convictions for felony offenses or offenses involving moral turpitude, if such proof was available.

But collateral acts of misconduct not resulting in charges filed (and under the present statute, Art. 732a, Vernon's Ann.C.C.P., in conviction), or convictions for misdemeanors not involving moral turpitude are not generally admissible. Pena v. State, Tex.Cr.App., 246 S.W.2d 478; Mitchell v. State, Tex.Cr.App., 239 S.W.2d 384; Clements v. State, 145 Tex.Cr.R. 428, 169 S.W.2d 190.

The state offered no proof of the bad general reputation of appellant. But on his cross-examination, appellant having admitted that he had the knife in his pocket, the state was permitted to show that after he had had 'previous knifing trouble' the sheriff ordered appellant not to carry a knife and he promised he would not.

Also appellant was asked and admitted that he had been finally charged, convicted and assessed a two-year term for aggravated assault upon a woman in 1950, on a plea of guilty. He was asked, also, whether another aggravated assault in 1952, 'because you seriously cut another person with a knife, is still pending on the records of this county isn't it, because the trial was interrupted when you committed this murder of Henry Stewart?'

And appellant was asked if the woman almost died from his cutting her (in 1950) and 'if you knife had been a little more true then you might have been up for murder then instead of now?'

Objections were offered to such testimony and after the evidence was admitted appellant asked that the jury be withdrawn, and in their absence moved for a mistrial because of such impeachment by proof of such collateral offenses.

The evidence as to the pending charge of an aggravated assault against appellant was inadmissible under Art. 732a, V.A.C.C.P. Also the state should not have been permitted to inquire as to the details of the assaults by asking 'you seriously cut another person' in connection with one charge, and in the other 'this woman almost died'. Finch v. State, 103 Tex.Cr.R. 212, 280 S.W. 597.

Further, this court has not held that the offense of aggravated assault is an offense involving moral turpitude because committed upon a female. We have held that an aggravated assault by an adult male upon his wife involves moral turpitude. Lloyd v. State, 151 Tex.Cr.R. 43, 204 S.W.2d 633; Stewart v. State, 100 Tex.Cr.R. 566, 272 S.W. 202.

Appellant complains that he was not permitted to attack the character of the deceased and show his general reputation for violence and certain previous acts of misconduct.

While appellant was testifying and before the issue of self-defense had been raised or any act of aggression on the part of the deceased had been shown or suggested by the evidence, he was asked by his counsel whether, when he first met the deceased in 1951, he heard anything about his character. Appellant was not permitted to answer this question, the court ruling that he would have to 'lay a foundation.'

Next appellant attempted to testify as to what a switchman told him in Raymondville about the deceased, but the court ruled that some act of aggression or of violence be first shown.

Appellant contends that the trial court was in error, the evidence being admissible and relevant on the question of who was the aggressor; that is that the evidence should have been admitted, though the facts were not known or communicated to appellant, on the question of what the deceased probably did and not what appellant may have thought he was doing.

Appellant was later asked by his counsel 'do you know anything about the deceased with reference to being a violent man?' The state objected that the question was not proper and the defense should be limited to proof of the general reputation of the deceased in regard to violence.

Just how appellant could testify to acts unknown to him at the time of the homicide without violating the hearsay rule is not apparent.

The defense may offer testimony as to any specific act of violence or misconduct which evidences the violent character of the deceased under the following conditions:

If offered for the purpose of showing the...

To continue reading

Request your trial
73 cases
  • Ex Parte Carl Eddie Miller, Applicant.
    • United States
    • Texas Court of Criminal Appeals
    • October 28, 2009
    ...may be admitted to show the reasonableness of defendant's fear if he was aware of those specific acts); Dempsey v. State, 159 Tex.Crim. 602, 266 S.W.2d 875, 877–78 (Tex.Crim.App.1954) (prior specific acts of violence by the victim offered by the defendant are admissible if (1) offered to sh......
  • State v. Miranda
    • United States
    • Connecticut Supreme Court
    • September 12, 1978
    ...615, 620; State v. Alderette, 86 N.M. 600, 605, 526 P.2d 194; Commonwealth v. Amos, 445 Pa. 297, 302, 284 A.2d 748; Dempsey v. State, 159 Tex.Crim. 602, 605, 266 S.W.2d 875; Stover v. Commonwealth, 211 Va. 789, 794, 180 S.E.2d We are presented in this appeal only with the question of the ad......
  • State v. Lee
    • United States
    • Louisiana Supreme Court
    • November 3, 1975
    ...the defendant, to show his state of mind or apprehension of harm. See Jones v. State, 182 Md. 653, 35 A.2d 916 (1944); Dempsey v. State, 159 Tex.Cr. 602, 266 S.W.2d 875. Contra, Newsome v. State, 197 Miss. 797, 20 So.2d 708 (1945); People v. Soules, 41 Cal.App.2d 298, 106 P.2d 639 (1940); S......
  • Bustillos v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 17, 1971
    ...a felony or one involving moral turpitude which is not too remote. Neill v. State, 158 Tex.Cr.R. 551, 258 S.W.2d 328; Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875; Mauldin v. State, 165 Tex.Cr.R. 405, 308 S.W.2d 36; Dukes v. State, 161 Tex.Cr.R. 423, 277 S.W.2d 710; Wardrope v. State......
  • Request a trial to view additional results
2 books & journal articles
  • Defenses and special evidentiary charges
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • May 4, 2021
    ...v. State , 659 S.W.2d 649, 653-54 (Tex.Crim.App. 1983); Navarro v. State , 639 S.W.2d 945, 946 (Tex. Crim.App. 1982); Dempsey v. State , 266 S.W.2d 875, 877-78, 159 Tex. Crim. 602 (Tex.Crim.App. 1954). This portion of the so-called Dempsey rule was codified in Rule 404(a)(2) of the Rules of......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...Deltenre v. State 776 S.W.2d 807 (Tex. App.—Fort Worth 1989) aff’d , 776 S.W.2d 97 (Tex. Crim. App. 1991) 9:690, 9:710 Dempsey v. State 266 S.W.2d 875 (Tex. Crim. App. 1954) 3:1770 Denham v. State 574 S.W.2d 129 (Tex. Crim. App. 1978) 3:650, 3:660 Denton v. State 911 S.W.2d 388 (Tex. Crim. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT