Hollingsworth v. State, 15506.

• Decision Date: 01 February 1933
• Docket Number: No. 15506.,15506.
• Citation: 56 S.W.2d 869
• Parties: HOLLINGSWORTH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 869

56 S.W.2d 869

HOLLINGSWORTH v. STATE.

No. 15506.

Court of Criminal Appeals of Texas.

February 1, 1933.

Commissioners' Decision.

Appeal from District Court, Ochiltree County; E. J. Pickens, Judge.

Doyle Hollingsworth was convicted for driving a motor vehicle on a street in an incorporated city while intoxicated, and he appeals.

Reversed and remanded.

R. T. Correll, of Perryton, and Hoover, Hoover & Cussen, of Canadian, for appellant.

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

CHRISTIAN, J.

Upon conviction for driving a motor vehicle upon a street in an incorporated city while intoxicated, appellant was prohibited from driving any motor vehicle on the highways of this state for a period of two years, and a fine of $25 was assessed against him.

It was charged in the indictment, in substance, that appellant, while under the influence of intoxicating liquor, drove an automobile on Main street within the limits of the incorporated city of Perryton. The testimony of the state was to the effect that appellant, while intoxicated, drove his automobile on Main street in the city of Perryton. Appellant did not testify in his own behalf, but introduced witnesses who testified that they saw appellant shortly before he drove the car, and that he was not in any degree intoxicated. Johnson, who was in the automobile with appellant, testified that he did not smell liquor on appellant's breath, and declared that appellant was not under the influence of intoxicating liquor. For the purpose of impeaching Johnson, the state proved that he had made a written statement in which he had declared that appellant was drunk at the time he drove the car. A small bottle of whisky was found in appellant's automobile when he was arrested

It is shown in bill of exception No. 17 that after Johnson had testified that the statement he made prior to the trial to the effect that appellant was drunk was untrue, and that appellant was not intoxicated, the court retired the jury and called for the sheriff. When the sheriff approached, the court stated: "I want you to stay here until the witness leaves the stand." Further, the court stated, in the absence of the jury, "It is very apparent that some improper influence is acting upon this witness right now." Moreover, the court instructed the sheriff to arrest the witness after he had left the stand. These proceedings took place in the absence of the jury. The witness was arrested after he left the stand: but the jury were apparently not aware of this fact. Appellant objected to the state being permitted to further examine the witness on the ground that the action of the court had unduly intimidated the witness, and was calculated to prevent him from giving testimony favorable to appellant. The objection was overruled, and the district attorney proceeded to further examine the witness. In view of the fact that the bill of exception fails to show that the witness gave different testimony more favorable to the state, we deem it unnecessary to determine whether the matter presents reversible error. A similar situation was presented in Hampton v. State (Tex. Cr. App.) 46 S.W.(2d) 314, and held to present reversible error. However, the statement is made in the opinion in Hampton's Case that the bill of exception suggested that, after the occurrence, the witness gave different testimony, more favorable to the state.

Bill of exception No. 22 reflects that appellant's witness Lackey was asked by the district attorney if it were not a fact that he (the witness) or his partner at one time had requested appellant not to come into their place of business any more, and if it was not a fact that the witness had been having some trouble with appellant. The court sustained the objection to the question and instructed the jury not to consider such question for any purpose; but appellant reserved his bill to the asking of the question. Thereafter, as shown in bill of exception No. 24, the district attorney, upon cross-examination, asked appellant's mother the following question: "Is it not a fact that one day a week or two ago when Carl Donley and Doyle Hollingsworth (the defendant) went to Canadian to meet you that you did not have trouble with your son on that occasion?" Appellant objected, and the court sustained the objection and instructed the jury not to consider the question for any purpose. Nevertheless, appellant took his exception to the asking of the question. The questions carried the imputation that appellant's character was bad. The fact that appellant was forced to object placed him in a bad light before the jury. The jury would naturally have concluded that the witnesses would have answered that they had had trouble with appellant. Moreover, in view of all the facts and circumstances in evidence, it cannot be said that the conclusion would not have been drawn from the questions that the trouble to which the district attorney referred involved the drinking of intoxicating liquor. Under the circumstances, we think the questions were obviously prejudicial. We are unable to reach...