Lasater v. State

• Decision Date: 17 November 1920
• Docket Number: (No. 5893.)
• Citation: 227 S.W. 949
• Parties: LASATER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 949

227 S.W. 949

LASATER v. STATE.

(No. 5893.)

Court of Criminal Appeals of Texas.

November 17, 1920.

Rehearing Granted February 9, 1921.

Appeal from Criminal District Court, Dallas County; Robt B. Seay, Judge.

E. W. Lasater was convicted of manslaughter, and he appeals. Reversed and remanded on rehearing.

Puckitt, Mount & Newberry, Robert B. Allen, Jr., and Robert B. Allen, all of Dallas, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of the offense of manslaughter, and his punishment fixed at five years' confinement in the penitentiary.

A number of bills of exceptions appear in the record, all of which have received our careful attention, but we deem none of sufficient importance to discuss, except bills of exceptions Nos. 1, 2, and 3. It is urged in bill of exceptions No. 3 that counsel, prosecuting privately, used improper argument to the jury in his closing address. Examining the same, we find that it was a sort of an apostrophe to the various members of the family of deceased who were present, and contributing to the sympathetic effect of such speech by their conduct. We have held that such appeals as appear in this bill are calculated to arouse the sympathy of the jury, but it appears that no objection was made to any of the matters thus transpiring until the said argument was concluded, and, further, that no special charge on the subject was asked. There appearing no misstatement of any material facts prejudicial to appellant, no personal abuse, such as is calculated to arouse prejudice against him, and no misstatement of any issue by which he could have suffered injury, we have always held that no reversible error is presented in this condition of the record.

By his bill of exceptions No. 2, appellant complains that the prosecuting attorney was permitted to hold in his hand, in close proximity to the jury, certain papers, stated to be those pertaining to divorce cases theretofore filed against appellant by his two wives, and to ask such questions relative thereto as to injure the appellant. This bill is qualified by the trial court in such manner as to show that when the first question was asked relative to a divorce some papers were then held in the hand of the state's attorney, but immediately upon objection being made the jury was withdrawn, the objection was sustained, and that said papers were no longer held in view of the jury, exhibited, or referred to. It appears that appellant had put in issue his reputation both for truth and veracity and as a peaceable, quiet, law-abiding citizen, and also as a kindly, generous man, and that as affecting such reputation the witnesses mentioned in this bill were asked relative to whether or not they had heard of cruel treatment on the part of the accused toward his two wives. This was objected to also. We think that when a defendant puts his reputation in issue, as affecting their knowledge, his witnesses may be asked if they had not heard of specific instances of his misconduct, which, if true, would affect such reputation, and we do not think that the fact that such misconduct was against his wife, child, mother, or other relatives would alter the rule, or make such evidence inadmissible.

During the trial, and when introducing its rebuttal evidence, the state placed on the stand a witness who was asked if he had ever arrested appellant on a felony charge, to which the witness answered that he had; and in response to a further question stated that he had arrested appellant for seduction. The defense asked him when said arrest took place, and he replied, "In 1903." The time of this trial was in 1920. Appellant objected to this evidence when offered, because same was of an occurrence too remote, and asked the court to exclude the same from the jury, which objection was sustained, and the court told the jury that a man's reputation might not be attacked by proof of his arrest more than 10 years prior to the time of the trial, and since it had developed that more than 10 years had elapsed since said arrest, they would not consider the evidence for any purpose.

This was all that transpired relative to this matter in the presence of the jury. It further appears from the bill of exceptions, however, that before this evidence was offered by the state the trial court was informed privately by the defense, in the presence of the prosecution, that such evidence would be offered, and that it was too remote, and therefore objectionable; also, the defense requested the court to instruct the prosecution not to ask anything relative to such arrest in the presence of the jury. The averments of said bill further show that the court then stated privately to said parties that under the law no such evidence would be admissible if it related to an arrest more than ten years prior to the trial, but refused to instruct counsel for the state not to propound questions relative thereto. No contention was made by the state that the defense was in error as to the fact that the arrest occurred some 17 years before the trial, but, as we understand the bill of exceptions, there was agreement on this point between the state and the defense. We think if the trial court be apprised before evidence is offered of its erroneous character, and there be then entire agreement between the state and defense as to same, the court should not permit it in evidence. Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679; Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50.

We know of no hard and fast rule which fixes a given number of years beyond which an event becomes too remote to have weight in testimony. The application of the rule of remoteness is somewhat difficult, being affected by the facts of the particular case. See Bibb v. State, 215 S. W. 312, for discussion of this principle and citation of authorities. It appears from the facts in the instant case that appellant, prior to the introduction of the testimony complained of in this bill of exception, had proven by a number of witnesses that his reputation from his boyhood up to the time of the trial was good, both for truth and veracity and as being a peaceable, law-abiding citizen.

It is well established that when one side presents an issue and evidence in support thereof, the other side has the right to...