Dina v. State

• Decision Date: 13 January 1904
• Citation: 78 S.W. 229
• Parties: DINA v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W. 229

DINA v. STATE.

Court of Criminal Appeals of Texas.

January 13, 1904.

Appeal from District Court, Morris County; P. A. Turner, Judge.

Jim Dina was convicted of assault with intent to rape, and he appeals. Reversed.

J. F. Jones and Bolin & Terrell, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of an assault with intent to commit rape, and his punishment assessed at a term of eight years in the penitentiary.

During the trial appellant objected to testimony showing that certain witnesses who testified at this trial had not testified at a former trial of the case. It appears from the explanation of the court in this connection that the defendant proved that prosecutrix, Mrs. Segal, had brought a suit in the district court for damages, since the former trial, against the railroad company, on account of the alleged assault, the same having been committed on the cars of the railroad company; and in response thereto the state was permitted to show that said witnesses were connected with the railroad company, and that they only became witnesses for defendant after the institution of the civil suit. This was admissible as going to the credit of said witnesses. We further hold that the argument of the district attorney along this line was permissible. Appellant objected to that part of the argument of the district attorney in which he used the following language: "These witnesses did not testify at the former conviction of defendant;" the contention being that the allusion to the former conviction of defendant was reversible error. The court explains this bill by showing that the use of the word "conviction" in that connection by the district attorney was entirely accidental; that the district attorney, on his attention being called thereto, immediately corrected it; and that the court verbally instructed the jury to disregard said remarks. In Baines v. State, 66 S. W. 847, we held that the allusion to a former conviction by the district attorney, where the same was entirely accidental, was no ground for reversal. And see Gaines v. State (Tex. Cr. App.) 77 S. W. 10, 8 Tex. Ct. Rep. 616.

With reference to other objections urged to the argument of the district attorney we would observe that no written charge was asked on the subject by appellant, and refused by the court, and bill of exceptions saved thereto. Unless the language used is of such a character as obviously to require a reversal, it is held that the court will not reverse in the absence of a requested charge on the subject, and the refusal to give the same, all saved by bill of exceptions. Smith v. State (Tex. Cr. App.) 68 S. W. 995, 5 Tex. Ct. Rep. 372.

Appellant reserved a bill of exceptions "to the charge of the court wherein it told the jury they could not use the contradictory testimony of Joe Davis and Charley Gallagher and Bob Conley of witnesses Mrs. Ann Floyd and J. G. Floyd, because Bob Conley's testimony did not corroborate the testimony of Joe Davis and Charley Gallagher, and did not contradict the testimony of Mrs. Ann Floyd and J. G. Floyd, as shown in paragraph ten of said charge." We have examined the record in this connection, and believe the point is well taken. If it be conceded that the court could charge in the manner done here, calling direct attention to the contradictory testimony by reiterating it in the charge, certainly he was not authorized to assume there was any contradiction between the witnesses. That was a matter solely for the jury. And unquestionably the court had no right to tell the jury that there was a contradiction between the testimony of defendant's witnesses and Bob Conley's testimony, inasmuch as an examination of the testimony of Bob Conley fails to disclose that he contradicted the testimony of Mrs. Floyd in any material respect. Indeed, as we view his testimony, it corroborates her. We doubt the propriety of the court in any case charging on impeaching testimony, and instructing how the jury are to weigh it, unless there be some occasion to limit the purpose of the testimony, or there is danger the jury might appropriate the testimony as original evidence against appellant, or for some other purpose than purely impeaching purposes. See Dodson v. State (Tex. Cr. App.) 70 S. W. 969, 6 Tex. Ct. Rep. 311. There was no occasion here to charge on impeaching testimony at all. The charge as given was not only not...