Moore v. State

Decision Date07 February 1912
Citation144 S.W. 598
PartiesMOORE v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Olvey Moore was convicted of perjury, and he appeals. Affirmed.

Sam D. Stinson and Evans & Carpenter, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, tried, and convicted of the offense of perjury, and his punishment assessed at two years confinement in the penitentiary.

The record in this case is in a most deplorable condition. The bills of exception are placed in the record without being numbered, being some 40 of them. In the motion for a new trial it is said the court erred in admitting evidence "as shown by bill of exception number," giving a number, when the bills are not numbered, and in some instances referring us to bill No. 57, when there are not over 40 in the record. The bills relating to the evidence and the charge and the refusal to give special charges are mixed and mingled, and in some instances the same bill is in the record twice. The bills in regard to the testimony of a given witness are scattered about in the record — in one bill objections to a certain question and answer, and in another, another question and answer relating to the same matter. Attorneys and clerks should take more care in the preparation of the record if they expect us to give the matters that careful and thoughtful review that should be given each case.

1. In one bill it is complained that the district attorney was permitted to ask a witness "if he and Olvey Moore were not good friends." The interest, bias, and state of feeling of a witness towards a defendant is always admissible in evidence.

2. In another bill defendant states he asked the witness Joe Shelton, "Could you testify that Olvey Moore was sober enough that night to comprehend what was going on in that room?" to which the state objected as calling for the opinion and conclusion of the witness. The objection was sustained, and defendant states he "expected to prove by said witness Olvey Moore was very drunk that night, and was in such condition that he could not know what occurred that night." The court in approving the bill states: "Shelton testified fully in regard to defendant's drinking, and stated he did not know whether he was drunk or not. All that he knew was that he was drinking." As thus qualified, the bill presents no error.

3. Defendant states that, while the witness Shelton was on the stand, the district attorney asked him, "Didn't you, Olvey Moore, and Dab Craig have an understanding 'before the grand jury met here that you would not tell about the game at the hotel?" to which the witness answered, "Me and Dabney had an understanding, but me and Olvey had none." The defendant objected on the ground that the question was leading and suggestive, when the district attorney remarked to the court, "He is not a willing witness," to which remark the defendant objected. And the question was repeated, and he was asked "if he had so testified in the Dabney Craig case," to which the witness replied, "I do not see into the question." The objections urged were that the questions were leading and suggestive, and an attempt on the part of the state to intimidate the witness. In the light of the qualification made by the court, the court did not err in overruling the objections made. The court says: "On the trial of the Dabney Craig case the witness had so testified on cross-examination; that in this case he evaded the questions, and showed hostility to the state, and was friendly to the defendant." Again, defendant says the district attorney asked this witness, "Were you shooting dice when defendant was sitting on the bed?" which question was objected to on the ground that it was leading. It is not shown in the bill that any answer was made to this question, and the bill does not show in what connection it was asked. To the other questions in the bill no grounds of objection are stated, and the bill is so incomplete that we do not feel called upon to review the other matters relating to the examination or testimony of this witness. In Ballinger v. State, 11 Tex. App. 323, it is held bills of exception must state enough of the evidence or facts to render intelligible the ruling of the court, and in Sims v. State, 30 Tex. App. 605, 18 S. W. 410, it is held, where bills of exception fail to state the grounds or reasons for the exception urged, they are too indefinite to be considered. For a collation of authorities, see White's Annotated Code of Criminal Procedure, §§ 857, 1123. In this case by the qualification of the judge it is shown that this witness was unfriendly to the state, and in such case it is within the discretion of the court to permit leading questions to be propounded. Navarro v. State, 24 Tex. App. 378, 6 S. W. 542.

4. The defendant objected to the witness Joe Scott being asked, "Mr. Scott, were you so under the influence of whisky on that night that you did not know whether there was a game or not?" and being permitted to answer, "I was not." The court in approving the bill states: "On cross-examination defendant's counsel endeavored to make him admit that he was drunk while in the room where the game was played. The witness had answered that he was not drunk, but was under the influence of whisky, when on redirect examination the above questions were permitted." As thus qualified, it was not error to admit the evidence over the objections made, and, in addition thereto, in the bill only this isolated question and answer is placed, and its connection to the other testimony is not shown. Under the decisions above cited the bill is too incomplete to be considered.

5. On page 58 of the transcript is a bill of exceptions in the record in regard to the testimony of A. M. Butler, but same is not signed nor approved by the judge. On page 98 is another bill to a portion of the testimony of this witness, which is as follows: "Be it remembered that upon the trial of the above-styled cause, when the witness for the state, A. M. Butler, was on the stand, in rebuttal, the district attorney, over defendant's objection, was permitted to ask the following question: `Then was he asked the question whether he bet in a game played with dice with Pete Blankenship, Joe Shelton, Joe Scott, or any other person in a room at the McBride Hotel, Friday, December 23, or Saturday morning, December 24, 1910?' to which defendant objected because same was leading, suggestive, and he was state witness, which objection was by the court overruled, and said witness answered: `Yes, sir; he was asked that question.' And the district attorney asked the further question: `Did he ever answer the questions that he did not recollect?' Objected to as leading and suggestive, and the objection was overruled by the court. The district attorney follows this up with the following question: `Did he answer the questions at all, I don't remember, or did he make a positive answer?' Objected to as leading and calling for the opinion and conclusion of the witness, which objection was by the court overruled, and witness answered: `No; his answer was that, if there was any game, he did not see it. This was his answer all the way through.' To which action of the court the defendant then and there excepted and objected, and here now tenders his bill of exceptions No. ____, and asks that the same be signed, and approved and made a part of the record in this cause." In this bill it is seen that it is not shown about whom the questions were being asked. Neither the questions nor answers disclosed about whom Mr. Butler was being questioned. Mr. Butler was a member of the grand jury, and it appears that some person was before the grand jury, and was asked certain questions, but the bill does not disclose who it was, and but for the qualification of the judge to the bill we could not know, and as qualified by him the bill presents no error.

6. On page 58 of the transcript is a bill of exceptions to two questions propounded to Charlie Williams; the objection being that they were leading and suggestive. The connection of these two questions to the remainder of the witness' testimony, or the evidence as a whole in this case, is not set forth in the bill, nor to what the questions really related.

7. In the bill on page 60 it is shown that while the witness Elliott was on the stand he was asked, "I will ask you after the defendant testified, as you stated, whether he was given an opportunity before he left the grand jury room to retract what he said?" to which the witness answered, "Yes, sir; he was given the right to retract." Again, this witness was asked: "Was this defendant asked the question what was his condition relative to being drunk or sober?" which he answered, "He said he was not drunk." The further question was asked, "Was the defendant asked with reference to his condition as to whether he was scared or frightened or knew what he was doing?" to which the witness answered, "Defendant said he was not scared nor frightened." He was asked the further question, "Do you know when he said Pete Blankenship came in the room?" and he answered, "The defendant said Pete Blankenship came in after 12 o'clock some time." Other questions of similar import are shown to have been asked this witness, and questions of similar import were propounded to S. P. Cowan. The bills themselves (there being a number of them embracing these questions and answers) are incomplete; this court having held that a bill of exceptions, to be considered, must sufficiently set out the proceedings and attendant circumstances to enable the court to know certainly that an error has been committed. To place one or two questions in a bill by itself and the answer thereto, the objection urged being that such question and answer was "immaterial and irrelevant," or that it called for the "conclusion...

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