Ewing v. State, 14033.

• Decision Date: 08 April 1931
• Docket Number: No. 14033.,14033.
• Parties: EWING v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W.2d 450

EWING v. STATE.

No. 14033.

Court of Criminal Appeals of Texas.

April 8, 1931.

Rehearing Denied April 6, 1932.

Commissioners' Decision.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

Jack Ewing was convicted of unlawfully selling intoxicating liquor, and he appeals.

Affirmed.

Baker & Baker, of Coleman, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Offense, the unlawful sale of intoxicating liquor; penalty, confinement in the penitentiary for two years.

J. E. Brand, the alleged purchaser, testified that on a certain date he purchased a pint of whisky from appellant at his residence. Appellant testified in his own behalf denying the sale. He also offered evidence seeking to establish an alibi.

Counsel for the appellant in testing the qualification of the jurors sought to inquire of each venireman whether he was in favor of the law of reasonable doubt and presumption of innocence in criminal cases. The court declined to permit such inquiry, but told counsel he might advise the jurors as to what the charge of the court would contain touching the law of presumption of innocence and reasonable doubt, and that he might ask them whether they were prejudiced against such law or if for any reason they would hesitate to follow the court's charge. Counsel refused to ask the question last mentioned, and the court then explained to the jurors that they would be instructed in the charge on the matters mentioned. This action on the part of the court has been held not to be reversible error. See Rushing v. State (Tex. Cr. App.) 36 S.W.(2d) 159, not yet reported [in State report], and also Elliott v. State (Tex. Cr. App.) 36 S.W.(2d) 513, not yet reported [in State report].

In bill of exception No. 2 it appears that after his peremptory challenges were exhausted counsel for the appellant stated that he desired additional challenges to avoid having objectionable jurors impaneled to try the appellant. The bill does not disclose the names of the objectionable jurors or show that any of them were challenged for cause or that any objectionable juror was forced upon the appellant. Neither is it shown that appellant exhausted his peremptory challenges upon objectionable jurors. The bill discloses no reversible error. Bartlett v. State, 82 Tex. Cr. R. 468, 200 S. W. 839.

In bill of exception No. 3 it appears that the witness Leonard had testified that the general reputation of the state's witness Brand for truth and veracity was bad. On cross-examination by state's counsel Leonard was asked if it was not a fact that those from whom he had learned concerning the reputation of Brand in the particulars mentioned was not from the rowdy and drinking element. The witness replied in the negative. Objection to the inquiry was made upon the ground that it involved an opinion and conclusion. It is thought the inquiry was an improper one. However, there is no recital in the bill showing the nature of the testimony of the witness Brand or that he had given any material testimony against the accused.

Bill of exception No. 4 is of the same nature as bill No. 3. The witness Dunn, who had given testimony approving the reputation of the witness Brand for truth and veracity, was asked if it was not a fact that he had heard that Squire Jones, the justice of the peace in Santa Anna, Tex., had had Brand up before him charged with whipping his wife, to which the witness gave a negative answer. This bill, like the preceding one, fails to advise the court of the materiality of Brand's testimony. The following comment upon bills of the same nature set forth in the opinion of this court in the case of Widener v. State, 109 Tex. Cr. R. 423, 5 S.W.(2d) 138, 139, is pertinent as bearing upon the proper disposition of the bills under discussion: "By bills of exception Nos. 1 and 2, appellant complains of the misconduct of the county attorney in improperly impeaching one of his witnesses. While appellant's bills show that the method of impeachment was improper, they contain no statement of facts showing the materiality of the testimony of the impeached witness. We do not know from said bills what testimony the witness gave. If his testimony was immaterial, his improper impeachment would not have been harmful to appellant. Miller v. State, 67 Tex. Cr. R. 654, 150 S. W. 635; Holmes v. State, 68 Tex. Cr. R. 17, 150 S. W. 926. The bills of exception being insufficient in the respect mentioned, reversible error is not made to appear."

Bills of exception Nos. 6 and 7 deal with the rulings of the court touching the witnesses Turner and Black, who had given testimony adverse to the general reputation of the witness Brand for truth and veracity. They were asked questions on cross-examination by state's counsel to which the appellant objected. The answers and the objections to the questions are like those in bills Nos. 3 and 4, and also fail to advise the court of the materiality of Brand's testimony.

Bills Nos. 10 and 11 complain of the ruling of the court touching the testimony of the witnesses Kelly and Johnson who gave testimony proving the reputation of the witness Brand as a law-abiding citizen. These bills, like the preceding bills 6 and 7, fail to advise the court of the materiality of Brand's testimony. That a bill of exception to the reception of evidence, in order to warrant a reversal, must show that the court is not required to look beyond the bill to determine in ruling upon the admission or rejection of evidence, what error of a material nature has been committed is illustrated by numerous announcements by this court. Hays v. State, 94 Tex. Cr. R. 498, 252 S. W. 521; Morgan v. State, 82 Tex. Cr. R. 615, 201 S. W. 654; Thompson v. State, 90 Tex. Cr. R. 15, 234 S. W. 401; Turner v. State, 93 Tex. Cr. R. 104, 246 S. W. 87.

Bill of exception No. 5 complains of the action of the court in permitting on cross-examination, while the appellant was upon the witness stand, the district attorney to ask the appellant if within the last six years he had not been charged with a felony by receiving stolen property, to which he answered, "Yes sir," and also if he was not charged in this court with another case of selling intoxicating liquor, to which he testified he was, and whether or not he was guilty of the offense the state was talking about, to which he answered, "No sir." The bill further shows that the court instructed the jury at the instance of the appellant at the time the testimony was elicited by the state that the jury could not consider same against the appellant as any evidence of his guilt in this case and only as to his credibility. The bill further shows that the court instructed the jury that they would not consider that question nor any answer to it for any purpose; that is, the question about the appellant having been charged with receiving stolen property. The appellant excepted to the acts and conduct of the district attorney in bringing out these matters, though the court had instructed the jury not to consider that part about receiving stolen property, on the ground that the court could not withdraw from the jury such prejudicial evidence by instructing them not to consider it. The bill is approved with the following qualification: "The jury were instructed not to consider any question or answer either of the State or of the defendant in regard to defendant having been charged with receipt of stolen property." When a person accused of crime testifies in his own behalf, evidence that he had been indicted for several felony offenses was admissible as bearing upon his credibility as a witness. Bedford v. State, 75 Tex. Cr. R. 309, 170 S. W. 727; Warren v. State, 33 Tex. Cr. R. 502, 26 S. W. 1082; Rutherford v. State (Tex. Cr. App.) 34 S. W. 271; Chance v. State, 63 Tex. Cr. R. 602, 141 S. W. 113.

Bill of exception No. 8 complains of the action of the court in permitting the witness J. E. Brand, while testifying in behalf of the state and after he had testified that he had purchased a pint of whisky from appellant at the time alleged in the indictment, over the objection of appellant, to identify a pint bottle and testify that that was the bottle containing the whisky which he purchased from the appellant, and that he got in his car at appellant's place of business and came over to the county attorney's office and turned this bottle of whisky over to the county attorney, and that from the label of the bottle he recognized it as the same bottle, on the ground that it was hearsay acts and declarations, immaterial and irrelevant testimony, and would not throw any light on the real issues in the case. We think this evidence was admissible and not subject to the objections made.

Bill of exception No. 9 complains of the refusal of the court to permit the appellant to further interrogate a witness offered by him, M. A. Prichard, after he had testified that he had heard a few expressions of the character of state's witness Brand, and that he knew it in a general way and that what he knew was bad, he was then asked to answer first if he were acquainted with it, and replied, "I am not familiar with it," and then he was asked what the people generally said about it, and replied that he did not know what the general opinion was. The district attorney objected to his testimony and asked that what he had said be excluded from the jury, which objection was sustained. While it is a general rule when a witness testified to the good reputation of another, he may so testify if he is otherwise well acquainted in the community if he states he knows the general reputation of the person inquired about, though he may have never heard that repute called in question. The same rule...