Marshall v. State

• Decision Date: 31 March 1915
• Docket Number: (No. 3482.)
• Citation: 175 S.W. 154
• Parties: MARSHALL v. STATE.
• Court: Texas Court of Criminal Appeals

175 S.W. 154

MARSHALL v. STATE.

(No. 3482.)

Court of Criminal Appeals of Texas.

March 31, 1915.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Bluett Marshall was convicted of murder, and he appeals. Reversed and remanded.

W. J. Townsend, Jr., of Lufkin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder, and his punishment assessed at ten years' confinement in the state penitentiary, from which judgment he prosecutes this appeal.

We do not deem it necessary to discuss those bills of exception which contended that the court erred in overruling his application for a continuance, and in refusing to grant a new trial on account of newly discovered testimony. The testimony will not be newly discovered on another trial, and if he desires the attendance of the witnesses on account of whose absence he sought a continuance, and those whom he says will testify to matters of which he was unaware, he can secure their attendance on another trial by proper diligence.

The most serious matter complained of in the record is presented in a bystander's bill. It is made to appear that the court refused to approve the bill as presented to him, without qualifying same. This bill, as qualified, appellant refused to accept, and proved up his bill by three witnesses, under article 2067, Revised Statutes. The trial judge did not, as the law provides, when counsel would not agree to the corrections or qualifications, make out and file a bill setting forth the matter as viewed by the judge, but all we have in the record is the bill as proven up by appellant. The district attorney did not controvert this bill by filing controverting affidavits in the court below, so the bill is before us uncontested. It is true the district attorney has written a letter to the Assistant Attorney General, which was filed with the papers, in which he contends that the bill does not correctly quote his language, but this we cannot consider. The law (article 2067) has provided the way in which such contest must be made; and, as no contesting affidavits were filed, we must take the bill as presented in this record as correctly presenting the matter. In the bill it is shown that during the closing argument of the district attorney he said:

"It is passing strange that in every murder case the defendant invariably brings in testimony and attacks the reputation of the deceased for peace and violence, and in this case they have thus attacked the dead man's reputation. Under the law, the state cannot put in a defendant's reputation by evidence before the jury, unless the defendant himself invites it by attempting to show a good reputation for peace and violence, which this defendant has not undertook to do, and he dare not do it, for we would be able to show that his reputation for peace and violence was not good but bad, and the jury already had enough before them about his being drunk and being tied to a tree at a picnic where his neighbors had assembled together to enjoy the day among themselves to let the jury know that the defendant's reputation for peace and violence is not good but bad."

While it is true that defendant took the stand as a witness, he did not put in issue his reputation as a peaceable and law-abiding citizen. It is contended that, as there was evidence in the record that on a prior occasion at a picnic he was drunk and was tied to a tree, this furnished some basis for the remark used. Unfortunately for the state's contention, however, the record discloses that, while the district attorney did attempt to get such testimony admitted, yet appellant's objection thereto was properly sustained by the court, and such facts were not admitted in evidence. At the time of this alleged occurrence, appellant was not even acquainted with deceased; it was some seven years prior to this difficulty; and even if he was drunk on that occasion and was tied to a tree by the sheriff, if such testimony had been admitted on the trial of the case, over objection of appellant, it would have been in and of itself such error that would necessitate a reversal of the case, under the evidence before us. This question is discussed very thoroughly in Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105, and it is held that such testimony is inadmissible, and on another trial there should be no effort made to get such evidence before the jury. App...