Polk v. State

• Decision Date: 25 January 1922
• Docket Number: (No. 6470.)
• Citation: 238 S.W. 934
• Parties: POLK v. STATE.
• Court: Texas Court of Criminal Appeals

238 S.W. 934

POLK v. STATE.

(No. 6470.)

Court of Criminal Appeals of Texas.

January 25, 1922.

Rehearing Denied March 22, 1922.

Appeal from District Court, Sabine County; J. T. Adams, Judge.

Earl Polk was convicted of seduction, and he appeals. Affirmed.

Minton & Lewis, of Hemphill, for appellant.

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

HAWKINS, J.

Conviction is for seduction. Punishment three years in the penitentiary.

An unfortunate situation seems to have arisen with reference to the bills of exception. Quite a number of bills appear in the record with qualifications and explanations appended. These bills were approved on the 25th day of June, 1921, and were filed the 7th day of July. One attorney representing appellant, on the 16th day of July, 1921, makes an affidavit to the effect that the qualifications attached to the bills are not supported by the record; that they are unfair and unjust to appellant; and attaches to the affidavit the question and answer statement of facts upon the trial of the case and asks the court to examine same in connection with his affidavit to verify the truth of his criticism of the qualifications. We had occasion in Jones v. State, 89 Tex. Cr. R. 6, 229 S. W. 865, and in Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869, to discuss at some length bills of exception and the effect of accepting the same with the qualifications attached thereto, and the proper procedure in the event attorneys declined to accept the bills as qualified. In the Hunt Case, supra, the following language was used:

"The judge ought not to have filed the bills as qualified and explained by him without appellant agreed to accept them as so modified; however, when appellant ascertained that this had been done, his proper course would have been a motion to withdraw them from the files, and request the judge to cancel the qualifications and mark them `refused,' with the further request that the judge prepare and file bills in lieu thereof; then, if the judge declined to do so, he could have resorted to proper `bystanders,' or by affidavits have shown that he had been denied his bills."

It was not intended to intimate by the expression, "by affidavits showing that he had been denied his bills," that the bills as qualified could be impeached by affidavits, but that affidavits could be resorted to where the trial judge had declined to file his bills in lieu of those marked `refused' in order to show that thereby appellant had been deprived of his bills altogether. In a later case, Donohue v. State (Tex. Cr. App.) No. 6532, decided January 11, 1922) 236 S. W. 86, we had occasion again at some length to express our views as to the proper procedure where the trial judge denied the occurrence of the matters to which the bill related, or denied that any exception had been taken at the time. Attorney for appellant, in requesting this court to examine in connection with his affidavit the entire question and answer record of the proceedings upon the trial, is asking us to assume a burden which we must decline. The bills of exception, so far as the record discloses, were accepted by appellant with the qualifications and explanations attached thereto, and are filed as part of the record. We must assume that the trial judge will allow to an accused on trial fair, full and correct bills of exception reflecting truthfully the occurrence at the time. When this is attempted to be done by a qualification or explanation, and is accepted and filed by appellant as his bill of exception the truth of the qualifications or explanations cannot be impeached by an ex parte affidavit. It will therefore be necessary for us to consider the bills in connection with the qualifications and explanations attached.

By bills of exception Nos. 1, 2, 3, and 4 appellant complains that the court declined to permit prosecutrix on cross-examination to answer certain questions propounded to her by counsel for appellant. Regardless of the qualifications, the bills are totally insufficient to be considered by this court. None of them show what the expected answer of the witness would have been. In this state of the record it is impossible for the reviewing court to know whether any injury has been done, even though the testimony sought was not permitted.

"A bill of exceptions taken to the refusal of the court to permit a witness to answer a question whether on direct or cross-examination must show what the answer of the witness would have been in order to entitle it to consideration on appeal."

Under this headnote on page 136 of Branch's Anno. P. C. are more than 30 cases cited supporting the note. Recent cases to the same effect are Lane v. State, 89 Tex. Cr. R. 140, 229 S. W. 547; Hill v. State, 89 Tex. Cr. R. 450, 230 S. W. 1005; Crisp v. State, 89 Tex. Cr. R. 502, 231 S. W. 392.

Bills of exception Nos. 6, 7, 8, and 9 raise the same question, and will be treated together. After prosecutrix had testified that she had submitted to carnal intercourse with appellant for the first time in May, 1919, under a promise of marriage, counsel for appellant subjected her to a severe cross-examination, and by many questions imputed a want of chastity to her, which questions, if answered in the affirmative by her, would have practically detroyed the state's case. She was asked—

"if she did not at one time, before she ever became acquainted with appellant, permit one Judge Bennett to put his arms around her and hug and kiss her, and take her on his lap, at Chester Bennett's house, and if Chester Bennett did not reprimand them and tell them such conduct would not be permitted in his house?"

She was further asked:

"As a matter of fact, isn't it true that over a period of more than a year and a half or two years you had been promiscuously having intercourse with men in the community—I will say with Bud Cohn, Aaron Boyett, Judge Bennett, Avery Hogan, L. J. Hunnicut, and Dewey Buckley?"

All these questions were answered by prosecutrix in the negative. After the state had rested its case appellant failed to call any witness to affirm the truth of the matters suggested in the questions, although some of the parties named were present in court. Upon the defendant resting the state called Judge Bennett, who testified that no such thing as intimated by the question ever occurred between him and prosecutrix at the house of Chester Bennett, and Chester Bennett testified to the same effect. The state was also permitted to prove by Dewey Buckley and Bud Cohn that they, nor either of them, ever at any time had carnal intercourse with prosecutrix. Objection was urged to the testimony of all these witnesses upon the ground that the same was not in rebuttal to any testimony offered by appellant, and because the same was prejudicial and injurious to appellant, and was inadmissible because it tended to improperly bolster up the testimony of the prosecutrix. Appellant rests his contention that such testimony was inadmissible upon the rule stated in Conway v. State, 33 Tex. Cr. R. 327, 26 S. W. 401, as follows:

"No principle in the law of evidence is better settled than the one enunciated in the rule that testimony in chief of any kind, tending merely to support the credit of the witness, is not to be heard except in reply to some matter previously given in evidence by the opposite party to impeach it. When this evidence was introduced, nothing had been given in evidence by defendant to impeach the credit of the witness, and it was for that reason clearly incompetent."

As to the correctness of the general rule stated in the Conway Case, there can be no question. It is supported by many authorities collated in Branch's Crim. Law, § 875, pp. 557, 578, and also by numerous text-writers. We do not agree with appellant as to the application of the rule to the facts of the instant case. We think it is an exception to the general rule, and more akin to the doctrine announced in Phillips v. State, 19 Tex. App. 158, and Harris v. State, 49 Tex. Cr. R. 338, 94 S. W. 227. These cases are based upon the cross-examination of a stranger of such character as tended to bring him into disrepute before the jury, and indirectly seriously attack his testimony, which was intended to convey to the mind of the jury that his whole testimony was false. While it is true the prosecutrix may not have been a stranger in the community where she testified, yet she occupied a relation to the case different from that of the ordinary witness. That the questions asked tended to bring her into disrepute before the jury, and to intimate that her averments as to her previous chastity were false, there can be no question. That if the questions had been answered in the affirmative by her it would have destroyed the state's case there can be no doubt. It occurs to us the conditions were somewhat similar to those discussed by us in Rosa v. State, 86 Tex. Cr. R. 646, 218 S. W. 1056, with the exception that in the Rosa Case the conduct complained of was that of the county attorney, and in the instant case the questions propounded were by counsel for appellant. While Rosa was testifying as a witness in his own behalf he was asked if he had not been convicted in Hoboken of a felony and served a term in the penitentiary in New York, if he had not in the state of New York gone by a different name than that of Rosa, and many other questions of like import. No effort was made by the state to follow up these questions, and the case was reversed because of the misconduct of the county attorney. After the state had asked Rosa the questions complained of, and had then closed its case without following same up, surely it could not be insisted with any logic that, if Rosa had had a witness present who could have denied the imputations contained in the questions, he should not have been permitted to give the jury the benefit of the denial. So, in the instant case, the attack directed at the prosecutrix was not...