Hardgrave v. State

• Decision Date: 11 March 1908
• Parties: HARDGRAVE v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 163

HARDGRAVE v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

Appeal from District Court, Mitchell County; James L. Shepherd, Judge.

Ed Hardgrave was convicted of murder in the second degree, and he appeals. Affirmed.

Hood & Shadle, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; his punishment being assessed at 25 years' confinement in the penitentiary.

The entire statement of facts is by questions and answers. Motion by the Assistant Attorney General is made to strike same from the record as being in contravention of Acts 30th Leg. p. 510, c. 24, § 6, with reference to statement of facts in criminal cases, which is as follows: "In the trial of criminal cases in the district court, in which the defendant is charged with felony, the stenographer shall keep an accurate stenographic record of all the proceedings of such trial in like manner as is provided for in civil cases, and should an appeal be prosecuted from any judgment of conviction, whenever the state and defendant cannot agree as to the testimony of any witness, then and in such event so much of the transcript of the stenographer's report with reference to such disputed fact or facts shall be inserted in the statement of facts as is necessary to show what the witness testified to in regard to the same, and shall constitute a part of the statement of facts, and the same rule shall apply in the preparation of bills of exceptions: provided that such stenographer's report, when carried into the statement of facts or bills of exceptions, shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved." Under these provisions of the law we are of opinion the motion of the Assistant Attorney General should be sustained. There is nothing connected with the record and the preparation of the statement of facts which brings it within the rules prescribed by the above section, indicating that the trial judge deemed it necessary to an understanding of the case to so make up and constitute said statement of facts. The statement of facts, therefore, cannot be considered.

There are three bills of exceptions reserved to the action of the court permitting witnesses to testify to the general reputation of the house at which the homicide should have occurred, to wit, that it was a house of prostitution. As a general proposition, we are of opinion that evidence of this character is not admissible in cases of this sort; but there are circumstances readily conceivable that might justify its introduction. If the deceased was an officer, and there is some intimation in the qualifications to the bill that such was the case, and was there in the discharge of his duty as required in obedience to the terms of article 363 of the Penal Code, it would be permissible to show the house to be one of ill fame; and there might be other circumstances or matters arising during the trial making such testimony admissible. In order to justify a reversal of the case upon these exceptions, it would be necessary for the...