Overby v. State

• Decision Date: 31 May 1922
• Docket Number: (No. 6982.)
• Citation: 242 S.W. 213
• Parties: OVERBY v. STATE.
• Court: Texas Court of Criminal Appeals

242 S.W. 213

OVERBY v. STATE.

(No. 6982.)

Court of Criminal Appeals of Texas.

May 31, 1922.

Rehearing Denied June 21, 1922.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Webster Overby was convicted of burglary, and he appeals. Affirmed.

Y. D. Kemble, of Waxahachie, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant pleaded guilty to the offense of burglary in the district court of Ellis county, and was given three years in the penitentiary.

A plea for suspended sentence was filed on behalf of appellant and one witness introduced by him, who testified that appellant had never before been indicted for a felony. Neither in said application for suspended sentence nor by the introduction of any evidence in support of the proposition that his reputation was good for peace and quietude was there any affirmative raising by appellant of the issue of such general reputation. The state proved by witnesses, over the objection of appellant, that the reputation of appellant in the regard mentioned was bad. It is here urged that the state cannot enter the field of the general reputation of the accused who has filed an application for suspended sentence, unless in specific terms in such application an inquiry be invited into such reputation, or the question of such reputation be first raised by the introduction of proof in support of same by the accused.

We feel constrained to decline to uphold this contention. Article 865c of our Code of Criminal Procedure is not as clear upon this point in its verbiage as we might wish, but it is the manifest purpose of the Legislature in what it has said upon the question of suspended sentence to afford the jury a knowledge of the antecedents of one who is charged with crime and who asks that he be given a suspended sentence, in so far as proof of the good or bad reputation of such applicant will shed light upon such antecedents. This would seem to be in accord with reason. The object of said law is to reform youthful and first offenders. As bearing directly upon the question as to whether criminals coming within this class are likely to be benefited by the grant of suspended sentence, it would seem that the jury ought to be given some insight into the previous life and character of such applicant. We are not inclined to think the authorities cited by appellant, to wit, Baker v. State, 87 Tex. Cr. R. 308, 221 S. W. 609, and Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360, sustain his contention. In the Baker Case this court used the following language:

"The suspended sentence law (article 865c, C. C. P.) opens the way for the state to prove `the general reputation of the accused where the issue of suspended sentence is presented by him.' The method of proving general reputation and the limitations incident to it were understood at the time the statute was enacted, and we find nothing in the law indicative of an intention on the part of the Legislature to change these rules. Prior to the passage of the statute, the reputation of one accused of crime was a subject upon which the state was not permitted to introduce evidence unless invited by the accused. The statute mentioned extends the invitation."

In the Williamson Case we find the following language:

"Appellant entered a plea requesting that, in the event he was convicted, his sentence be suspended. When this plea is entered by any one on trial for a felony, section 2 of the suspended sentence act (chapter 7, Acts 33d Leg. p. 8) provides that `the court shall permit testimony' to be introduced `as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence,' providing therein that, if he has theretofore been convicted of a felony, the sentence shall not be suspended. Unless a person on trial enters this plea, his reputation cannot be put in issue by the state, unless he does so; but, when he elects to avail himself of the privilege of filing this plea, then he puts his reputation in issue, and any legitimate testimony bearing on that issue becomes admissible, and, by filing this plea in this case, he opened the door for testimony bearing on his reputation."

We think the rule thus announced in each of said cases in consonance with the entire purpose of the statute in question, and that the proposition should be maintained by this court. We therefore decline to uphold this contention of appellant, and state our conclusion that the filing of an application for a suspended sentence is the only fact necessary to be shown in order to justify the state's introduction of appropriate evidence showing that the general reputation of such applicant for peace and quietude is bad.

By his bill of exceptions No. 2 appellant complains of the action of the state's attorney in his argument relative to the issue of suspended sentence. This complaint is as follows:

"The court erred in allowing the state's counsel in his closing argument to the jury to refer to the omission of defendant's counsel to put on the witness stand witnesses who had been subpœnaed by the defendant to testify as to the general reputation of the defendant."

From our holding above it must appear that appellant was in error in concluding that his reputation was not a proper issue. An analysis of the matter objected to, as stated in said bill of exceptions, reveals that what was done by the state's attorney was to "refer to the omission of defendant's counsel to put on the witness stand witnesses who had been subpœnaed by the defendant to testify as to the general reputation of the defendant." The general reputation of appellant being a pertinent issue, and it appearing from the statement just quoted that he had present at court a number of witnesses whose testimony would have borne upon this issue, in line with all the authorities it was not erroneous for the state's attorney to comment upon the appellant's failure to introduce witnesses whom he had summoned and who were present for the purpose of giving evidence upon said question of reputation. Cases cited in Vernon's C. C. P. pp. 719, 720, and also Branch's Ann. P. C. pp. 208, 209, support the general proposition here involved. Much of said bill of exceptions is taken up by a statement of the grounds of his exceptions by the attorney of appellant. Unless there otherwise appeared in said bill facts supporting the grounds of objection thus stated, we could not appraise the value of what was said by the attorney.

We cannot look to the record outside of a bill of exceptions to see if the grounds of objection there stated be true or otherwise, and the certificate of the court to a bill of exceptions does not in any wise establish the truth of those things stated as the grounds of objection. See subdivision 38, Vernon's C. C. P. p. 557. No error is shown by said bill of exceptions.

By another bill of exceptions appellant complains of two separate excerpts from the remarks of the state's attorney. Said bill of exceptions entirely fails to disclose any request,...