Riojas v. State

• Decision Date: 10 June 1896
• Parties: RIOJAS v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 268

RIOJAS v. STATE.

Court of Criminal Appeals of Texas.

June 10, 1896.

Appeal from district court, Atascosa county; M. F. Lowe, Judge.

Jose Ma. Riojas was convicted of murder in the second degree, and appeals. Reversed.

J. W. Preston, J. T. Bivens, and J. M. Eckford, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and given 10 years in the penitentiary, and prosecutes this appeal.

1. Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge and filed after the expiration of the term. Accompanying the bill is the following explanation by the judge: "This bill of exceptions was handed me within the time prescribed by law, and during the term of court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel, at the time of the admission of the same; and the clerk of the district court of Atascosa county is here now ordered to file the same as part of the record in this case, and transcribe same, making a certified copy of same, and all indorsements hereon, and forward same to Austin as a part of the transcript in said cause." This bill cannot be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty of counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See George v. State, 25 Tex. App. 229, 8 S. W. 25; Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088. However, if we could consider this bill of exceptions, we are of opinion that the objection to the admission of the testimony of Mrs. Reed that the state's witness Miguel Rios told her how the homicide occurred on the next morning thereafter, should have been sustained. This evidence to support the state's witness by proving that he had made the same statement the next morning after it occurred was introduced as original testimony. In no case can this be done, except in cases of rape and assault with intent to rape. If, however, the defendant attempted to show, upon cross-examination or otherwise, that his testimony on the trial was recently fabricated, or that he was induced to so testify from some motive or improper influence, then he could be supported by proof that he made the same statement before the influences were brought to bear, or soon after the transaction, and such testimony would go to solve the issue as to whether his testimony was recently fabricated, or whether it was the result of these improper influences and motives. See Robb v. Hackley, 23 Wend. 56; People v. Doyell, 48 Cal. 85; Hotchkiss v. Insurance Co., 5 Hun, 90. Such supporting testimony is never admissible as evidence in chief, nor when the witness is attacked by proof of bad reputation for truth and veracity can he be supported in this way. To be more explicit: The defense introduced evidence for the purpose of showing that the witness for the appellant, or vice versa, has a bad reputation for truth and veracity. The party introducing the witness cannot support him by proof that he told the same tale soon after the transaction, or at any other time, as that sworn to on the trial. See Russell v. Coffin, 8 Pick. 143; Rogers v. Moore, 10 Conn. 13; Webb v. State, 29 Ohio St. 351. The rule is: "When the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So, in contradiction of evidence tending to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen." Mr. Roscoe and Mr. Wharton and other text authors lay down the rule that, where the adverse party undertakes to show that the witness has made conflicting statements about the same matter, the party introducing the witness cannot support him by proving that soon after the transaction he made a similar statement as that sworn to on the trial. There is a line of authorities holding that you may support the witness upon such an attack. We have followed this line of authorities.

2. Appellant was convicted of the murder of one Roberto San Miguel, alleged to have been committed in the year 1896. The indictment was presented on the 1st day of April, 1896. The only eyewitness in the case was one Miguel Rios. At the time of the commission of the homicide said witness was a small boy, from 10 to 13 years of age. He testified that deceased was choked to death by means of a sash around his neck, and that the defendant and one Augustin Hernandez committed the homicide. His evidence as to the particulars of the homicide is exceedingly meager, and the circumstances supporting his testimony as to the...