Tipton v. State

• Decision Date: 16 December 1891
• Citation: 17 S.W. 1097
• Parties: TIPTON v. STATE.
• Court: Texas Court of Appeals

17 S.W. 1097

TIPTON v. STATE.

Court of Appeals of Texas.

December 16, 1891.

Appeal from district court, Wise county; J. W. PATTERSON, Judge.

Murray Tipton was convicted of incest, and appeals. Reversed.

Carswell, Fuller & Terrell, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

On the trial the prosecuting witness, Alice Tipton, was contradicted as to several of her statements by witnesses who testified to statements made by her with regard to the paternity of her child in conflict with her testimony as given on the witness stand. The prosecution was permitted, over defendant's objection, to introduce several witnesses, who testified to the general good reputation of the witness Alice Tipton in the neighborhood in which she lived for truth and veracity. The court did not err in permitting this evidence to be introduced. "When a witness whose reputation for veracity has been assailed, or where his credit has been impeached by showing that he has made contradictory statements to his evidence given on the trial, that he may be sustained by proof of his general good character for truth and veracity is well settled in this state, and the doctrine announced by Mr. Greenleaf upon the subject adopted as the rule. Greenl. Ev. (13th Ed.) § 499." Phillips v. State, 19 Tex. App. 158, and authorities cited; Crook v. State, 27 Tex. App. 198, 11 S. W. Rep. 444.

Defendant's second bill of exception was reserved to the remarks of the district attorney in his closing argument to the jury, in which he commented upon the fact that defendant had failed to call Sam Green, a brother-in-law, as a witness in his behalf; Alice Tipton having sworn that she had told said Green of the incestuous intercourse between defendant and herself, and that defendant was the father of her child. It is shown that the comments of the prosecuting officer complained of were provoked by declarations made by defendant's counsel in his argument with regard to the absence of the witness Green. Under the circumstances shown by the bill of exceptions, we do not think that the objection is maintainable. The prosecuting attorney did not abuse his privilege of argument. Upon the question of the admissibility and legality of such argument as is complained of, see Mercer v. State, 17 Tex. App. 467.

With regard to the third and fourth bills of exception, which complain of matters also relative to the closing argument of the district attorney, no material injury or...