Ingram v. State

Citation182 S.W. 290
Decision Date10 November 1915
Docket Number(No. 3758.)
PartiesINGRAM v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Milam County; J. C. Scott, Judge.

A. I. Ingram was convicted of murder, and he appeals. Affirmed.

Lyles & Lyles and Henderson, Kidd & Gillis, all of Cameron, for appellant. Ramsey, Black & Ramsey, of Austin, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder and his punishment assessed at 60 years' confinement in the state penitentiary.

In this case the state was seeking to corroborate the testimony of Mrs. L. W. Ward, the wife of deceased, the state knowing her testimony would place her in a position to be an accomplice to the crime, and knew she would testify to adulterous relations existing between herself and appellant, the state relying on this to show a motive for appellant to kill deceased, and to corroborate her the state was adducing testimony that he was seen at or near her house frequently, and that he telephoned Mrs. Ward frequently. While making this proof the state called Charlie Smith as a witness, and proved by him that appellant frequently used the telephone in the sheriff's office and talked a great length of time. That he, Smith, had ascertained Mrs. Ward's phone number was 409, and when appellant was talking over the sheriff's phone he went to another phone and called for 409, and found that it was busy. The state also proved that appellant used this phone so frequently and for so great a length of time, the sheriff had to object to appellant using the phone. At the time this testimony was offered, appellant had not taken the stand and admitted the adulterous relations, and had not admitted he talked several times a day — almost every day — with Mrs. Ward over the telephone. As said by this court in the Noftsinger Case, 7 Tex. App. 307, in a case depending on circumstantial evidence the mind seeks to explore every source from which any light, however feeble, may be derived. In this case, not knowing that appellant would testify, and he could not be compelled to do so, the state knew it must rely on circumstantial evidence to corroborate the testimony of Mrs. Ward as to adulterous relations, and the court did not err in admitting the testimony. If this were not true, after appellant himself testified to the adulterous relations and that he frequently talked to Mrs. Ward over the telephone —almost every day — the bills would not present error.

In the next bill it is shown that defendant called Leonard Ward, a son of deceased, as a witness, and the record discloses that:

"When this witness was put on the stand, and before he was asked any questions, the jury having been retired, the district attorney made the following statement:

"`We anticipate that they put this witness on for the purpose of laying a predicate for impeachment of him. This is the young man, son of the deceased, and we want to state to them, so that they cannot claim surprise, that this young man testified at the inquest, which was held the night the body left here, that he did not make these statements and that he did not know anything about the pistol, and we want to apprise them of the fact, so that they cannot claim surprise, and we tender them the evidence which they had at the habeas corpus, and they had this sworn testimony of the inquest, and they cannot claim surprise when they ask him these questions:

"`My name is Leonard Ward. I live at Detroit, Tex. I used to live here in Cameron. I will be 14 years old in August. I am the son of L. W. Ward, Jr., and his wife, Vasti Ward. I was living in Cameron at the time of the death of my father. I was at the house the night that he died. I was asleep at the time, but I got up. I was in a different room. The pistol shot woke me up, and I came into the room. There was a light in the room when I came in. My mother had lighted the lamp. When I went in the room, I saw papa laying on the bed. I saw my mother in there. There was nobody else. My mother said he had shot himself. I never saw the pistol in my father's hand until after Dr. Denson came. It was only a short while before he got there. When he came he found the pistol in his hand. He took it off and laid it on the bed. I broke it open and the cartridges fell out on the bed. There were five of the cartridges. It was not a six-shooter. It was size 38, and shot five cartridges. I think I would know the pistol if I saw it. This is it (38 S. & W.). I do not know whose pistol it was. I never did see it until that night. I don't know whether it was my mother's pistol or not. I never saw it until that night. I dont know whether it was her pistol and whether she kept it in her trunk or not. I never saw it until that night. I did not trim one of the cartridges that went into the pistol. I never did see it. Mr. Storey lives just across the fence from us. We lived on the same block, just a fence between us. It is about 50 yards. Dr. Denson got there in just a few minutes. Mr. Storey got there a little while after Dr. John got there. A minute or two after Dr. John got there he sent me after Mr. Storey. I called for Mr. Storey after I got to his house. I told him papa had shot himself. I did not show him the bullets when I went in there. I did not have them there. I did not show Mr. Storey the bullets, and tell him that I had trimmed one of them, and that was the one that my father was killed with. I did not break the pistol until after he came. I did not say I trimmed the cartridges, because I never did see any 38 cartridges there. I did not tell him that I had trimmed one of the cartridges, and that that was the bullet that killed my father. I did not tell him that at that time or at any other time. I went into the house at Mr. Storey's. He got up and lighted a fire and let me in. I did not tell him that my father had shot himself with my mother's pistol. I did not say whose it was. I did not state that he had shot himself with my mother's pistol that she kept in her trunk. I did not say where my father got the pistol because I did not know whose it was. I did not tell him that I did not know how my father got the pistol out of the trunk. I did not tell him that the cartridge I trimmed was the one that killed my father. Mr. Storey went back to our house with me. After we got back to the house, Mr. Quinn Walker came over there. I don't know how long before he came. He was a pretty close neighbor, just the other side of Mr. Storey's. He got there five or ten minutes after Mr. Storey came.'"

The state did not cross-examine the witness further than to prove by him that he was 14 years old, and had two sisters and a brother. After the witness had testified as above at the instance of defendant, he sought to lay predicates to impeach the witness by asking him if he had not told Mr. Walker and others that his father had shot himself with his mother's pistol. The court sustained the objection of the state, and would not allow appellant to lay predicates to impeach the witness, and sustained the objections of the state when appellant offered witnesses to impeach the witness as to the question above propounded. In this the court did not err, as it is made to appear that the witness had testified at the inquest and by his testimony it was made plain that defendant could not expect the witness to testify to any such state of facts as he had testified otherwise at the inquest, and the inquest papers had been tendered appellant's counsel before he propounded any questions to the witness, and the witness had been called to lay predicates to secure the admission of testimony otherwise inadmissible, and which could be admitted only to impeach him. One cannot himself call a witness knowing or being informed that he would not so testify and lay predicates to impeach his own witness and thus secure the admission of testimony otherwise inadmissible. Under the common law one was not permitted to impeach his own witness, as he was supposed to vouch for the truthfulness of a witness called by him, but our statute has slightly modified that rule. Article 815, C. C. P. Appellant cannot claim that he was surprised at the testimony of the witness — that he thought he could prove by the witness that the pistol found by deceased was his mother's pistol. If the witness had so told the witnesses named by appellant he knew or could have known by reading the testimony when tendered him, that the witness had sworn at the coroner's inquest that it was not his mother's nor his father's pistol. So it is manifest that the whole purpose of appellant in placing the witness on the stand was to lay a predicate upon which he could impeach the witness, and thus get testimony admitted which was otherwise inadmissible. The rule is clearly stated in Branch's Criminal Law, § 866, when one can and when one cannot impeach his own witness. Scott v. State, 20 S. W. 549, is particularly in point.

The authorities cited by appellant correctly hold, under our statute, when one is surprised at the testimony of the witness, and the witness testifies to facts injurious to his cause, he then may show prior statements different from those to which he testifies on the trial, and for this reason there was no error in admitting the statement Cozier Walker made before the grand jury. Had appellant not been informed prior to the time he called the witness, Leonard Ward, and propounded to him the questions he did, that the witness would not so testify, and had testified to a different state of facts at the coroner's inquest, he probably could claim that he was surprised at the testimony of the witness. But the bill and record discloses that he was given full information that the witness would not so testify; therefore there was no error in the ruling of the court.

The deceased was found in bed in a dying condition about 1 o'clock on the night of...

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11 cases
  • State v. Vlack
    • United States
    • Idaho Supreme Court
    • February 3, 1937
    ... ... which points with certainty to the guilt of the ... defendant." ( State v. Smith, 5 Idaho 291, 48 ... P. 1060.) ... Furthermore, ... Cox v. State, supra , has been somewhat ... modified in a later decision of the same court, Ingram v ... State, 78 Tex. Crim. 559, 182 S.W. 290 at 303, holding ... that confessions may be used to aid even the proof of the ... corpus delicti not alone the connection of the ... defendant with the crime. The requested instruction was ... furthermore clearly erroneous in this: that it went ... ...
  • State v. Aragon
    • United States
    • Idaho Supreme Court
    • June 22, 1984
    ...48 Pac. 1060.) Furthermore, Cox v. State, supra, has been somewhat modified in a later decision of the same court, Ingram v. State, 78 Tex.Cr.Rep. 559, 182 S.W. 290 at 303, holding that confessions may be used to aid even the proof of the corpus delicti not alone the connection of the defen......
  • Wilson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • January 13, 1995
    ...People v. Reingold, 87 Cal.App.2d 382, 197 P.2d 175 (1948); Holladay v. State, 709 S.W.2d 194 (Tex.Cr.App.1986); Ingram v. State, 78 Tex.Crim. 559, 182 S.W. 290 (1915); P. Herrick, Underhill's Criminal Evidence, §§ 184, 185 (5th ed. 1956). In my opinion, the conversation between Cerha and W......
  • State v. Tilley
    • United States
    • North Carolina Supreme Court
    • January 15, 1954
    ...for a party to put before the jury under the guise of cross-examination incompetent matter inimical to his adversary. Ingram v. State, 78 Tex.Cr.R. 559, 182 S.W. 290; 58 Am.Jur., Witnesses, Section 622. 7. The rule which forbids a party to impeach his own witness does not contemplate that t......
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