Pickerell v. State

• Citation: 198 S.W. 303
• Decision Date: 31 October 1917
• Docket Number: (No. 4712.)
• Parties: PICKERELL v. STATE.
• Court: Texas Court of Criminal Appeals

198 S.W. 303

PICKERELL v. STATE.

(No. 4712.)

Court of Criminal Appeals of Texas.

October 31, 1917.

Appeal from Potter County Court; T. W. McBride, Judge.

E. E. Pickerell was convicted of slander, and he appeals. Affirmed.

C. E. Gustavus and Reeder, Dooley & Reeder, all of Amarillo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for slander in imputing a want of chastity to Nellie Rowles, and punishment assessed at a fine of $500, and imprisonment in the county jail for 30 days.

Reversal is sought in the first assignment because a witness said:

"My very best opinion is that he was mad, just as mad as he could be; that is what I thought about it."

This related to the time that the witness claimed that appellant used the slanderous language. At the time the language on which the prosecution is founded was used appellant was at the courthouse, having been arrested for rape upon the daughter of Nellie Rowles. The witness named in the bill of exceptions under consideration testified that appellant used the language charged, and on cross-examination testified to his manner and conduct at the time, using in part the following language:

"He was indignant; part due to excitement maybe, but was very much wrought up over it; that is my opinion; he showed that appearance."

The language complained of in the bill was brought out by the state on redirect examination. The admissibility of the evidence, we think, is settled. Owen v. State, 52 Tex. Cr. R. 69, 105 S. W. 513, and cases cited; 5 Ency. of Ev. p. 701; Logan v. State, 53 S. W. 695; Branch's Ann. P. C. p. 73, § 132, and cases cited.

One of the witnesses to the language complained of in the prosecution was Henry S. Bishop, ex district attorney. He testified to the effect that appellant had uttered the slanderous words, and on cross-examination appellant proved by him that he was quite friendly with Mrs. Rowles; had gone on her note for $200, and directed his examination to show that the interest of the witness in the prosecution was active. The state on redirect examination was permitted, over appellant's objection, to prove by the witness Bishop the circumstances under which he had signed the note for Mrs. Rowles for $200 inquired about on cross-examination, and he stated, in substance, that he did so because she was without funds; that her daughter was pregnant, and she desired to go to Oklahoma and take care of her. The rule of evidence, we think, was not transgressed by allowing the state to prove the circumstances under which the note was signed in an effort to avoid the unfavorable light in which the appellant, through his cross-examination, had put the witness by proving his interest in and friendship for Mrs. Rowles, and the fact that he had signed the note. Barber v. State, 69 S. W. 515, and cases there cited; Wigmore on Evidence, § 952; Wharton's Crim. Evidence, § 491, also page 1000. notes 18 and 19, and cases cited.

The reputation for chastity and virtue of Mrs. Rowles was in issue. One of the state's witnesses, Dr. McFarlane, testified that her reputation in these respects was good. This was the full purport of his direct examination. On cross-examination he testified that he had heard her spoken of as being quite a nice lady; a hard working lady. Mr. Rowles was sick at the time, and that he never heard her reputation for chastity questioned; that he heard her frequently talked about and her name frequently mentioned. Appellant, in one of his bills of exception, complains that this witness was, at the instance of the state, permitted to say of her the following:

"One of her girls was sickly when she lived there, and they were very poor, and I heard her spoken of quite frequently as being a hard working woman, trying to support this sick girl, and things of that kind. This is all I have ever heard about her."

The statement of facts does not show this purported testimony. However, in deference to the bill we will assume that it was given and omitted from the statement of facts. The bill fails, however, to show the connection in which it was given, and whether upon direct or redirect examination, rendering it difficult for us to determine whether there was error committed or not. Clayton v. State, 67 Tex. Cr. R. 311, 149 S. W. 119; Todd v. State, 57 Tex. Cr. R. 15, 121 S. W. 506; Vernon's C. C. P. p. 543, note 29, subd. 3. The testimony would not have been admissible as original evidence. It is in line with and not materially different from that adduced by appellant on cross-examination, and if drawn out by the state on redirect examination would have been germane to the cross-examination; at least, under such circumstances it would not have been a matter of which appellant could complain.

In view of the condition of the statement of facts mentioned, and the silence of the bill as to the circumstances under which the evidence complained of was adduced, it will be assumed, in support of the judgment, that it was not proved as original testimony. Bradley v. State, 60 Tex. Cr. R. 398, 132 S. W. 484; Ferguson v. State, 57 Tex. Cr. R. 205, 122 S. W. 551; Kirkpatrick v. State, 57 Tex. Cr. R. 17, 121 S. W. 511; Edgar v. State, 59 Tex. Cr. R. 253, 127 S. W. 1053; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006.

The terms "maliciously" and "wantonly" were sufficiently defined in the court's charge to render the giving of the requested charge relating to them unnecessary.

The court in charging the jury informed them that if at the time of the alleged offense, October 25th, Mrs. Rowles was unchaste or her reputation for chastity was bad, appellant should be acquitted, but told them further that in the establishment of this defense the burden of proving it by the preponderance of the evidence was upon him. This charge was not excepted to, but a special charge...