Johnson v. State

• Decision Date: 20 June 1928
• Docket Number: (No. 11789.)
• Citation: 8 S.W.2d 127
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

8 S.W.2d 127

JOHNSON v. STATE.

(No. 11789.)

Court of Criminal Appeals of Texas.

June 20, 1928.

Commissioners' Decision.

Appeal from District Court, Callahan County; M.S. Long, Judge.

C. A. Johnson was convicted of manslaughter, and he appeals. Reversed and remanded.

T. J. Cunningham and R. N. Grisham, both of Eastland, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, manslaughter; penalty, five years in the penitentiary.

The fatal difficulty occurred in the hotel room of one Mae Caldwell about 10 o'clock p. m. The testimony for appellant supported his theory that he shot at state's witness Doc Elliott in self-defense, and accidentally killed the deceased, John Harris. His evidence tended to show that Doc Elliott was armed with a pearl-handled pistol at the time of the fatal difficulty, and circumstances were introduced tending to show that this pistol came from the room of Geneva Workhizer, a witness who was placed upon the stand by appellant. Doc Elliott denied having the pistol of the witness. Witness Geneva Workhizer was asked by appellant if she did not turn her pistol over to Doc Elliott about 7 o'clock on the evening of the trouble. She denied this. She was asked further if she did not ask Doc Elliot for her pistol two or three days later, in her reply to which she stated that she did not know who got her pistol. She was then asked if she did not hear Doc Elliott make the statement, "The pistol was lost in the trouble last night, and I can't give you the pistol," to which she answered that she did not remember, and the court stated:

"I am not going to permit you to impeach this witness. If you want to ask her impeaching questions, I am going to sustain the state's objection, if they make one."

The court refused to permit appellant to contradict her in any way. The appellant's counsel claimed to be surprised at her testimony, and claimed to have talked to her just before he put her on the stand, and offered to show statements given at a former trial contradictory to those testified to in the instant trial. Her testimony on a former trial is appended to the bill, and shows that she testified in part as follows:

"I turned the pistol over to Doc Elliott about seven o'clock that evening. * * * The next time I talked to him about the gun was several days after, when I asked him if he could let me have some money, because I needed it. I asked for the gun if he couldn't give me the money, and he told me that the gun was lost, had gotten lost in the trouble. * * * I have not ever received my pistol back from Elliott or compensation for it."

Where a party offering a witness has been led to believe that the answers of such witness will be favorable, and such answers, instead, are hurtful to him, he will be permitted to contradict such a witness by proof of former statements made by witness in line with what the witness was expected to testify. The answers of the witness in this case were hurtful, in that they directly contradicted the theory and some of the circumstances showing that Elliott was armed with her pistol. Appellant had the right to presume that the witness would again testify to what she had formerly said under oath. There is nothing in the record to show lack of surprise or good faith by appellant. Her answers were upon a contested and very material issue, and the action of the court in this matter was, in our opinion, prejudicially erroneous, and presents reversible error. White v. State (Tex Cr. App.) 62 S. W. 749; Jeter v. State, 52 Tex. Cr. R. 216, 106 S. W. 371; Baum v. State, 60 Tex. Cr. R. 638, 133 S. W. 271; Layton v. State, 61 Tex. Cr. R. 507, 135 S. W. 557; Harris v. State, 67 Tex. Cr. R. 423, 148 S. W. 1071; Perry v. State, 69 Tex. Cr. R. 644, 155 S. W. 265.

As previously stated, it was the theory of appellant that deceased was shot accidentally, and he offered to prove by three witnesses that they heard the deceased, John Harris, remark that he was shot accidentally. It is alleged in the bill that this occurred from 5 to 40 minutes after the shooting. The court qualified appellant's bill with the statement that the testimony of the above witnesses shows that they did not know how long after the shooting that the witness heard the statements of the deceased. It is doubtful if the bill is sufficient to properly present this matter.

Time alone is not the test. All the material facts and circumstances attendant upon this transaction from the shooting until the time this...