Watts v. State

• Decision Date: 11 November 1914
• Docket Number: (No. 3303.)
• Citation: 171 S.W. 202
• Parties: WATTS v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 202

WATTS v. STATE.

(No. 3303.)

Court of Criminal Appeals of Texas.

November 11, 1914.

Rehearing Denied December 2, 1914.

Appeal from District Court, Collin County; M. H. Garnett, Judge.

Will Watts was convicted of theft from the person, and appeals. Affirmed.

J. D. Cottrell, of Plano, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, J.

The indictment contains one count charging robbery and one charging theft from the person. The county attorney elected to try on the count charging theft from the person.

Claude Mayes was permitted to testify, over appellant's objections, that at the time or immediately after the time of the alleged theft the injured party Reagan came to his place, something like 200 yards from the scene of the theft, and requested the witness to give him something to defend himself; that the negroes had robbed him and were then trying to kill him. Mayes further testified that he stepped out of his door and saw three men standing up the street near where two streets cross. His testimony does not definitely in the bill of exceptions state the distance these persons were from his house or the distance from the scene of the theft. This occurred immediately after the transaction, and, if we go to the statement of facts, the state's evidence shows that these parties had chased Reagan, some using a knife or knives and a pistol. This matter was so closely related to the transaction, and while the alleged injured party was laboring under excitement, etc., we think it comes under the rule of res gestæ. See Walling v. State, 55 Tex. Cr. R. 258, 116 S. W. 813. There were two bills of exception reserved to this; the court signing the last of the two bills with this qualification:

"This testimony was admitted as res gestæ; the evidence showing that the matters testified by the witness occurred as quickly as the witness could run from the place of the alleged theft and immediately thereafter to the Mayes restaurant, about halfway around the block, a distance of about 200 yards."

This evidence, under the authority of Walling v. State, supra, would be admissible. Other cases might be cited in support of this proposition, but the Walling Case seems to be directly in point.

Will Smith, alias Lee Smith, testified for the defendant. After he had finished examining the witness, state's counsel proceeded to cross-examine him. Among other things, he asked the witness if he had made a statement to the city attorney at Plano the day after the alleged transaction, which was written down. These statements were with reference to what occurred at the scene of the theft. The objection was that it was an ex parte statement, and the defendant was not present, and had no chance to cross-examine him. The court admitted this as a matter of impeachment. The facts are not sufficient to show definitely the matter, and for this reason the bill might be considered defective. The witness qualifiedly denied making some of the statements. This bill seems to show that these questions were simply asked for the purpose of impeachment. Under the statement of the bill, we think there was no error. If it was not for the purpose of impeachment, and was an ex parte statement in the absence of the defendant, the bill should have shown it. This was proper as a predicate for impeachment.

Dick Reagan was the injured party. A bill of exceptions recites after the defendant had rested his case, and the state was offering rebuttal testimony, among other things, the county attorney offered to read in evidence an ex parte statement made by Dick Reagan before the city attorney at Plano. It is further recited this ex parte statement was not taken at the examining trial, but was made in the office of the city attorney, and no one was present, except himself and the witness Reagan. This statement was written, signed, and sworn to by Dick Reagan. Objection was urged to this on the ground that it was hearsay, prejudicial, and defendant was not present at the time it was made, and was hearsay as to him. Thereupon the court stated that, counsel for defendant having asked the witness Harrington to state whether certain things were or were not in the ex parte statement, he did not see how counsel were in a position to object to its being read to the jury. Thereupon counsel for defendant stated that the county attorney had been reading excerpts from an ex parte statement, and that he felt sure that he had at one time objected to them and understood that the evidence would go in over his objections; that he only asked the witness about a part of the ex parte statement, matters that Mr. Truett had read from extracts from the ex parte statement. Thereupon the court stated that he had not ruled on the ex parte statement, and would keep it out, except for the cross-examination of the witness. Thereupon the county attorney stated that he read a part of the ex parte statement about which the witness testified, and that was directly on the matter brought out by counsel for the defendant at the time, and since that time counsel for the defendant has asked the witness numerous questions as to whether this statement does or does not contain certain things. Thereupon the court overruled said objection and permitted the county attorney to read said statement in evidence before the jury. Then follows the statement of the witness read, or that portion of it read, to the jury. The court explains this bill in this wise:

"The state was permitted to read in evidence the ex parte statement of Dick Reagan, complained of because the defendant had examined the witness Harrington in regard to the contents of the statement. Furthermore, the examining trial statement of Dick Reagan had already been admitted in evidence without objection by defendant, and said examining trial statement contains all the material matters that are contained in the ex parte statement."

As presented, we think there is no error. The bill recites that the witness Reagan had been examined about some of these matters by counsel for the defendant, and the statement made was read by the county attorney in answer to those questions and that examination. The bill does not undertake to show nor assert that the statement introduced was not in reply or to meet the questions and matters brought out by the appellant. If one party reads a portion of a statement, the other side has the legal right to read all the remaining portion of it which relates to or explains that which was introduced by the first party, or about which inquiry is made. Unless this is shown to be error, this court cannot hold it error.

Another bill recites that Bud Bowman, alias Automatic Slim, was called by defendant and offered as a witness. Objection by the county attorney was that this witness was not competent, he being charged, under a separate indictment, with the same offense as this defendant, and his case has not been finally settled. Thereupon, at request of counsel for defendant, the jury was withdrawn. The court then stated that he understood that the witness offered by the defendant is charged in a separate indictment with the same offense, and this witness had been tried and not acquitted, but was convicted and given a sentence for so many years and his sentence suspended. The court further stated that he would rule that the law means that, unless he is acquitted, he cannot testify. Then follows the testimony which witness would have given had he been permitted to testify, covering several pages. This witness was not a competent witness for the defendant. The statute provides, where parties are indicted jointly or for the same offense under separate indictments, they cannot be used as witnesses for each other until they have been acquitted. This applies to felony cases....