Ross v. State

• Decision Date: 04 May 1898
• Court: Texas Court of Criminal Appeals
• Parties: ROSS v. STATE.

45 S.W. 808

ROSS v. STATE.

Court of Criminal Appeals of Texas.

May 4, 1898.

Appeal from Karnes county court; F. Theodore Barnes, Judge.

Filmore Ross was convicted of a simple assault, and he appeals. Affirmed.

W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of a simple assault, and his punishment assessed at a fine of five dollars; hence this appeal.

On the trial of the case, appellant reserved the following bill of exceptions: "When the state's counsel offered to prove by the witness Ambrose Risher what was said to him by Florence Ross, one of the state's witnesses, after the difficulty, and not in the presence or hearing of the defendant, the defendant objected to the introduction of said testimony, because it was hearsay, irrelevant, and not admissible. The court, overruling defendant's said objection, remarked, in the presence and hearing of the jury, that it could be introduced for the purpose of impeachment. The defendant then and there interposed the further objection, that the state could not attack its own witness, under the existing circumstances, and for the further reason that the proper predicate had not been laid. The court then overruled said objection of defendant, and permitted the state to introduce said testimony, to all of which appellant excepted." This might be a good bill of exceptions, if it informed us what Ambrose Risher testified that Florence Ross told him about it. This was the most essential feature of the bill of exceptions, but strangely it is omitted. We cannot tell whether the testimony given was of a character injurious to the defendant, because we are not informed what the testimony was. As a general proposition, appellant is correct that the state cannot impeach its own witness. This, of course, is subject to the exception that the witness may have stated some affirmative fact injurious to the state, and which was a surprise to the party calling the witness. This admitted testimony may have been of that character. We do not know. The bill should have been full, and disclosed the facts which rendered the testimony inadmissible. More than this, if the testimony was not admissible, we should have been informed of its character, in order to see whether or not it was prejudicial.

Appellant objected to the court's charge on the authority of the parent to correct his child, and in that connection defined what would constitute a moderate correction. This charge of the court was...