Lights v. State

• Citation: 17 S.W. 428
• Parties: LIGHTS v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 08 May 1886
• Court: Court of Appeals of Texas

17 S.W. 428

LIGHTS v. STATE.¹

Court of Appeals of Texas.

May 8, 1886.

Appeal from district court, Brazos county; N. G. KITTRELL, Judge.

Mose Lights was convicted of assault with intent to commit rape, and appeals. Affirmed.

J. W. Doremus, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

WHITE, P. J.

This is an appeal from a judgment of conviction for assault with intent to rape. A motion made to quash the indictment was properly overruled, it being in all respects conformable to the approved precedents. Willson, Crim. Forms, No. 358, p. 162.

On the trial the district attorney was permitted, over objection of defendant, to ask defendant's witness George Harrison "if he had not been in the penitentiary, and if he was not sent up from Navasota, Grimes county?" It is insisted that such questions were inadmissible for any purpose. If to show incompetency, that then the record of conviction was the only legal evidence, (Pen. Code, art. 644; Cooper v. State, 7 Tex. App. 194;) if to discredit the witness, then such method was incompetent. In Ivey v. State, 41 Tex. 35, where the witnesses were permitted to be asked where they came from and to answer that they came from jail, the court say: "If the object was to impeach the credit of the witnesses before the jury, it was not competent for that purpose, and they could not be discredited in that mode. However that may have been, the question having been asked and answered, the witnesses should have been permitted to state on what charge and under what circumstances they were committed, so that the jury might judge of the circumstances in considering and weighing their evidence." Mr. Wharton says: "In a leading case, Lord ELLENBOROUGH, C. J., compelled a witness to answer whether he had not been confined for theft in jail, and, on the witness' appealing to the court, said: `If you do not answer I will send you there.' In this country there has been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches on matter of record; but the tendency now is, if the question be given for the purpose of honestly discrediting a witness, to require an answer." Whart. Crim. Ev. (8th Ed.) 474, and numerous authorities cited. In Real v. People, 42 N. Y. 270, it was said by GROVER, J.: "My conclusion is that a witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary, or state-prison, or any other place that would tend to impair his credibility; and how much of his life he has passed away in such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may perhaps apply. This involves questions as to the jurisdiction and proceedings of a court, of which the witness may not be competent to speak. This was the point involved in Newcomb v. Griswold, 24 N. Y. 298, and the only point in that case. Here the inquiry was simply whether, and how long, the witness had been in the penitentiary. This the witness knew, and could not be mistaken about. * * * The extent of the cross-examination of this character is somewhat in the discretion of the court, and must necessarily...