Hutchins v. State

• Decision Date: 02 May 1894
• Citation: 26 S.W. 399
• Parties: HUTCHINS v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W. 399

HUTCHINS v. STATE.

Court of Criminal Appeals of Texas.

May 2, 1894.

Appeal from district court, Falls county; S. R. Scott, Judge.

Jim Hutchins was convicted of assault with intent to kill, and appeals. Affirmed.

DAVIDSON, J.

Conviction in this case was for assault with intent to murder. A statement of the facts was not presented to the trial judge by counsel. A presentation of such statement to the prosecuting attorney within the 10 days allowed for filing same with his approval is not legal diligence. The trial judge, county attorney, and counsel for appellant seemed to have all resided in the same town, and yet the statement of facts was not presented to the court for his approval at any time. It seems the diligence used consisted in writing out the said statement, and handing it to the state's counsel, with a request that he sign and agree to same. This he failed to do. Here the matter rested until the tenth day after adjournment of the court, when the counsel met to prepare such statement as they could agree upon. This meeting occurred after supper. Ascertaining the judge was sick, and would not see them after 9 o'clock that night, nothing further was done in the matter. Diligence to obtain said statement is utterly wanting, and no legal excuse shown for such failure. George v. State, 25 Tex. App. 229, 8 S. W. 25; Spencer v. State, 25 Tex. App. 585, 8 S. W. 648; Farris v. State, 26 Tex. App. 105, 9 S. W. 487; Aistrop v. State, 31 Tex. Cr. R. 467, 20 S. W. 989. While on stand as a witness, defendant was asked if he had not been previously arraigned before the court on a similar charge to one now under investigation, and for fighting. Over his objection that it was immaterial and irrelevant, he answered in the affirmative. In signing the bill of exceptions the court says: "Defendant had previously put his character and reputation for being a peaceable, quiet, and law-abiding man in issue, and this testimony was drawn out on said issue." It is well settled that, "where a defendant in a criminal case takes the stand to testify in his own behalf, he assumes the character of a witness, and is entitled to the same privileges, and is subject to the same treatment, and to be contradicted or impeached in the same manner, as any other witness." McFadden v. State, 28 Tex. App. 241, 14 S. W. 128; White v. State, 30 Tex. App. 652, 18 S. W. 462; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; Quintana v. State, 29 Tex. App. 401, 16 S. W. 258; Mendez v. State, 29 Tex. App. 608, 16 S. W. 766; Whart. Cr. Ev. § 432, and notes. This seems to be the rule in most of the states, if not in all, where defendants are permitted to testify on their own behalf. Mr. Wharton, supported by numerous authorities, says: "It has been ruled also that, to affect his credibility, he may be asked whether he has been in prison on other charges." Whart. Cr. Ev. § 432, and note 5. See, also, McGary v. People, 2 Lans. 227; Brandon v. People, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; People v. Casey, 72 N. Y. 393. The accused in this case put his character in issue as that of a peaceable, quiet, and law-abiding citizen. This court has laid down the rule that the credibility...