McNaulty v. State, 20579.

• Decision Date: 22 November 1939
• Docket Number: No. 20579.,20579.
• Citation: 135 S.W.2d 987
• Parties: McNAULTY v. STATE.
• Court: Texas Court of Criminal Appeals

135 S.W.2d 987

McNAULTY v. STATE.

No. 20579.

Court of Criminal Appeals of Texas.

November 22, 1939.

Rehearing Denied January 31, 1940.

Commissioners' Decision.

Appeal from District Court, Rusk County; Paul G. Brown, Judge.

Sylvester McNaulty was convicted of murder, and he appeals.

Judgment reversed and cause remanded.

Gordon R. Wellborn, of Henderson, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, onfinement in the penitentiary for ten years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Sam Lewis by cutting him with a knife.

Appellant cut deceased to death with a knife at a dance which was being given by Emma Jordan. It was the state's theory, given support in the testimony, that appellant killed deceased without provocation. It was appellant's version, as shown in his own testimony and that of other witnesses, that he acted in self-defense.

It is shown in bill of exception No. 1 that in argument to the jury the district attorney used language as follows: "We could have put on many more witnesses that would have testified to the same facts that the witness testified to that we did not put on." The argument was not supported by the evidence, and the court sustained appellant's objection thereto.

Bill of exception No. 3 reflects that the district attorney, in argument, used the following language: "It had been so long since you (the defendant) had knocked anyone in the head or cut someone that you just had it in your blood and you had to get it out, didn't you?" These remarks had no support in the testimony, and appellant's objection thereto was sustained.

We think the two bills of exception reflect reversible error. The first of said bills is concerned with the unsworn testimony of the district attorney that other witnesses would give testimony in support of the state's theory that the homicide was unprovoked. The other bill was in effect a statement by the district attorney that he had information that appellant had knocked other people in the head and cut them in transactions which were separate and distinct from the transaction on trial. The remarks embraced in the bills were obviously prejudicial, and the opinion is expressed that the court's action in attempting to withdraw them from the jury was not calculated to save appellant from harm. Hence we are constrained to hold that the bills of exception present reversible error.

It is shown in bill of exception No. 13 that a character witness who had testified that appellant's general reputation as a peaceable and law-abiding citizen was good was asked by the district attorney on cross-examination if he knew that appellant had been charged with an aggravated assault upon one Finnif. Appellant's objection to the question was properly sustained. While the witness might have been questioned concerning rumors he had heard as to specific acts of misconduct on the part of appellant, contrary to the reputation assigned by the witness, he could not be questioned concerning his knowledge of such matters. The question carried the implication that appellant had committed the assault inquired about. It was obviously prejudicial. We think that this bill of exception reflects error.

As shown in bill of exception No. 16, a character witness testified on cross-examination by the district attorney that on one occasion he needed appellant to work for him and found that he was in jail. The objection to such question was overruled. For the reasons stated in our discussion of bill of exception No. 13 we think this bill of exception reflects error.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Rehearing.

BEAUCHAMP, Judge.

The Honorable Joe C. Gladney, District Attorney of Rusk County, has filed in behalf of the State a motion for rehearing. He has briefed the questions raised thoroughly and appeared personally and made a very forceful argument in behalf of his contentions.

The first complaint is because the court sustained Bill of Exception No. 13. This includes the question asked the character witness regarding a specific offense. The original opinion in this case deals with that question thoroughly as we view it, but it appears that the opinion is not properly understood. A definite reference is made to the rule that a character witness may be cross-examined concerning his knowledge of rumors or reputation as to specific acts of conduct but could not be asked concerning his own knowledge. Furthermore, a question is objectionable independent of the answer when a proper construction of such question results in a charge that a specific offense has been committed. The objection to the question in this case was that it implied the commission of an offense. In fact, it asserts that an aggravated assault had been committed on another party by the appellant on the 18th day of June. The question as given is nothing else than a direct charge that such a thing had been done. Alexander v. State, Tex.Cr.App., 8 S.W.2d 176, correctly states the rule with authorities, and the court declined to reverse that case because of the negative answer, but this might be done only in view of the particular facts of the case. In other words, the rule was stated that the court did not think under the facts and in view of a negative answer that the rule would apply. So it is in each and every case which may have its characteristics lifting it out of the application of the rule. Attention is here especially called to the Alexander case with the observation that it does not state the rule sought to be established in the State's brief to the effect that whenever an...