Shipp v. State

• Decision Date: 17 March 1926
• Docket Number: (No. 9900.)
• Citation: 283 S.W. 520
• Parties: SHIPP v. STATE.
• Court: Texas Court of Criminal Appeals

283 S.W. 520

SHIPP v. STATE.

(No. 9900.)

Court of Criminal Appeals of Texas.

March 17, 1926.

Rehearing Denied May 12, 1926.

Appeal from District Court, Kendall County; R. H. Burney, Judge.

S. E. Shipp was convicted of manslaughter, and he appeals. Affirmed.

W. P. Mahaffey and E. B. Simmons, both of San Antonio, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

MORROW, P. J.

Under an indictment for murder, appellant was convicted of manslaughter; punishment fixed at confinement in the penitentiary for a period of two years.

At what period of time testimony of a prosecution for an act of the accused which is discrediting to his veracity becomes too remote to warrant its receipt in evidence seems to the writer one that cannot be arbitrarily determined by the courts. Entering into the relevancy of such testimony, there would seem to be many circumstances. For example, the period of the life of the accused at which the discrediting act took place and his subsequent conduct are elements that must be taken into account. Supposing the accused to be a youth, indiscretion amounting to a criminal offense committed by him ten years previous at a time when he was a mere child of tender years would seem, in the absence of supporting testimony showing prosecutions indicating continued evil disposition, to be too remote. Supposing the accused to be of middle age or more, and the discrediting fact to have taken place ten years or more antecedent to the time the proof of it was offered in evidence, his freedom from accusations of crime during the intervening space of time would seem of weight upon the relevancy of the proof. In the due administration of justice, the idea of reform — the fact that an individual once bad may have amended his ways — is not to be ignored by the courts. One may have been bad and become good, or may have borne an excellent character and a good reputation at no distant time and had become profligate and criminal in his tendencies. This court has oftentimes been called upon to consider, and has considered, the admissibility of testimony to the effect that the accused had been charged with an offense at some time previous to that for which he was on trial, but it has never, so far as the writer is aware, undertaken to fix arbitrarily and absolutely a space of time which would characterize such testimony as too remote. In the opinion of the writer, the nature of things precludes such a declaration. The receipt of such testimony should primarily be determined by the trial judge after an investigation, in the absence of the jury, to learn whether, under the ascertainable facts, the act is too remote. The exercise of such discretion is subject to review, and, in case of abuse, to be revised.

From the bill of exceptions we get this information and no more: Appellant, after testifying as a witness, was asked upon cross-examination if in Bexar county in 1916 he had not been indicted for the offense of attempting a subornation of perjury. Objection was made upon the ground that it was too remote to be relevant, either upon the credibility of the appellant or as bearing upon his plea for a suspended sentence. The objection was overruled and exception reserved. From the information conveyed in the bill of exceptions, it seems clear that this court would not be able to determine that the receipt of the testimony was not proper. In order to determine whether error was committed in the receipt of the evidence, this court is not called upon to make an examination of the statement of facts. The bill of exceptions should be accompanied by a sufficient recital of the facts to enable the court to determine its merits. See Ard v. State, 101 Tex. Cr. R. 545, 276 S. W. 263; Coulson v. State (Tex. Cr. App.) 277 S. W. 135; Carter v. State (Tex. Cr. App.) 277 S. W. 395; Pombo v. State (Tex. Cr. App.) 279 S. W. 263. In each of these cases will be found citations of many earlier announcements of this court.

The conclusions stated concerning the subject of remoteness are deduced from an examination of the precedents in this and other states. We have taken particular note of those to which we have been referred by the appellant.

The Bowers Case (Tex. Cr. App.) 71 S. W. 284, quotes from 1 Greenl. Ev. (16th Ed.) p. 925, § 495, as follows:

"The examination being governed and kept within bounds by the discretion of the judge, all inquiries into transactions of a remote date will, of course, be suppressed; for the interests of justice do not require that the errors of any man's life, long since repented of, and forgotten by the community, should be recalled to remembrance and their memory be perpetuated in judicial documents at the pleasure of any future litigant. The state has a deep interest in the inducements to reformation held up by the protecting veil which is thus cast over the past offense of the penitent. But where the inquiry relates to transactions comparatively recent, bearing directly upon the present...