Pitcock v. State, 30805

• Decision Date: 10 June 1959
• Docket Number: No. 30805,30805
• Citation: 168 Tex.Crim. 204,324 S.W.2d 855
• Parties: Wayne PITCOCK, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

324 S.W.2d 855

168 Tex.Crim. 204

Wayne PITCOCK, Appellant, v.STATE of Texas, Appellee.

No. 30805.

Court of Criminal Appeals of Texas.

June 10, 1959.

[168 TEXCRIM 204]Scarborough, Black & Tarpley, by James K. Graham, Abilene, for appellant.

Nelson Quinn, Asst. County Atty., Abilene, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was charged by indictment with the felony offense of driving while intoxicated and after the State had abandoned the felony charge which was predicated upon an alleged prior conviction in Taylor County in 1951, he was convicted of the included misdemeanor offense of driving while intoxicated and his punishment assessed at 6 months in jail and a fine of $150.

It was undisputed that at the time and place alleged the appellant drove his automobile upon a public highway, and the only issue in dispute was that of appellant's intoxication.

Appellant did not testify but called certain witnesses among [168 TEXCRIM 205] whom were five character witnesses who testified that his reputation for being a peaceable and law abiding citizen was good.

Appellant's sole contention is that the court erred in permitting State's counsel, upon cross examination of three of the character witnesses, to propound certain questions which implied the commission of other offenses by appellant.

The record reflects that the witnesses Beck, Rose and Hinninger were asked upon cross examination the following questions:

'(The witness Beck) Q.Mr. Beck, I will ask you if you have heard during your discussions there about this boy's reputation, about the trouble that he had concerning a DWI conviction in Stephens County in 1953?Ans.No, I had no knowledge of it.(Emphasis added.)

'(The witness Rose) Q. Have you heard them discuss the trouble that he was in in 1951 concerning a DWI conviction in Taylor County, Taxas?Ans.I don't know.(Emphasis added.)

'(The witness Hinninger) Q. Have you ever heard during these discussions anything concerning the trouble that the defendant was in Wayne Pitcock in 1953 concerning a DWI conviction in Stephens County?Ans.No Sir.'(Emphasis added.)

Appellant objected to the question on the ground that it was an effort on the part of the State to attack his reputation by proof of specific instances of law violation, and as to the inquiry concerning the 1953 conviction in Stephens County upon the further ground that there was no allegation in the indictment of such a conviction.

The rule regarding cross examination of a character witness is stated in Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172, 174 as follows:

'Witnesses attesting the good reputation of an accused may, as affecting the weight, credibility, and sincerity of their testimony, by asked upon cross-examination as to whether they had heard of acts of the accused inconsistent with that reputation.* * * Such, however, is as far as the State is permitted to go in such...