Mallory v. State

• Decision Date: 17 June 1896
• Docket Number: (No. 1,015.)
• Citation: 36 S.W. 751
• Parties: MALLORY v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 751

MALLORY v. STATE.

(No. 1,015.)

Court of Criminal Appeals of Texas.

June 17, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

John Mallory was convicted of a crime, and appeals. Reversed.

Stillwell H. Russell, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of passing a forged instrument, and prosecutes this appeal. This is a companion case to cause No. 1,016, Mallory v. State (just decided) 36 S. W. 750. The record in this case is before us in quite a different shape from that in the former case.

1. The witness Durham, while testifying for the state, over the objection of the appellant, was permitted to state that he obtained from E. A. Yost, J. R. Wisdom, R. F. Eisenlohr, and M. Stamm a description of the man who had passed upon them certain checks on the night of November 30, 1895, being the checks admitted in evidence in this case, and that, after he got a description from the parties named, he arrested the defendant, and that it was upon the description given him by said parties that he afterwards arrested defendant. The defendant was not present when the conversations occurred between said parties and the witness Durham. It was objected that this testimony was hearsay, and calculated also to injure the rights of the defendant before the jury, and served to strengthen the state's testimony as to the identity of the defendant, as the party who passed or uttered the forged checks upon said parties. We think these objections are well taken. These parties who gave a description to Durham were witnesses in the case, and testified. Their testimony as to the description and identity of the defendant was not attacked by showing that they had made contradictory statements in regard to this matter, and it was not permissible to corroborate them as to their description of the defendant, by the evidence of the witness Durham, to the effect that they had given him a description of a party that led him to believe that defendant was the guilty party, and caused him to make the arrest. It is not necessary here to state how far an officer will be permitted to go in testifying in regard to his actions in making the arrest of a party suspected of crime, or to detail information he may have received that led him to make an arrest, or to perform any given act looking towards the arrest of a party or ferreting out crime. Suffice it to say that the testimony here detailed by the witness Durham was unauthorized upon that ground, for it was tantamount to a statement that these witnesses were correct in their identity of the accused as the party who passed the checks. The evidence as given was clearly hearsay, and inadmissible.

2. The state was permitted to introduce in evidence two checks passed upon Wisdom, Yost, and Stamm, with the indorsement of the name of "Michael Gorman" placed thereon. This was objected to, because immaterial, irrelevant, and calculated to prejudice the defendant's rights in the premises. We think this testimony was admissible. See Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Burks v. State, 24 Tex. App. 326, 6 S. W. 300; Id., 23 Tex. App. 332, 6 S. W. 303.

3. The state was also permitted to prove by Yost, Eisenlohr, Stamm, and Wisdom that they saw the defendant indorse the name "Michael Gorman" on the various checks introduced in evidence. They testified that this was the first time they had ever seen the defendant. The defendant relied upon an alibi. In this connection the defendant himself testified, and denied writing the name "Michael Gorman" on the check, denied being present or having any connection whatever with the passing of the...