West v. State, 20523.

• Decision Date: 01 November 1939
• Docket Number: No. 20523.,20523.
• Citation: 132 S.W.2d 872
• Parties: WEST v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W.2d 872

WEST v. STATE.

No. 20523.

Court of Criminal Appeals of Texas.

November 1, 1939.

Commissioners' Decision.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

R. D. West was convicted of driving an automobile on a public road while intoxicated, and he appeals.

Reversed and remanded.

Baker & Baker, of Coleman, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is driving an automobile on a public road while intoxicated; the punishment, a fine of $100 and confinement in jail for 30 days.

Officers testified that on the 13th of November, 1938, they observed appellant enter his automobile and drive away along a street in the City of Coleman at a high rate of speed. They immediately pursued him and forced him to stop. According to their version, they advised appellant that he was driving too fast and finally ordered him out of his car. Appellant resisted and a fight ensued. The officers testified that appellant was under the influence of intoxicating liquor. Testifying in his own behalf, appellant denied that he had been drinking on the occasion in question and denied that he had done anything to warrant his arrest. Appellant introduced several witnesses who testified that they had seen him and talked to him shortly prior to the time of his arrest and that he was not intoxicated.

In rebuttal the state introduced the witness Mary Helen Ballard, whose testimony was to the effect that she had been with appellant before he was arrested and that he had drunk a quantity of whisky. It was her version that appellant was intoxicated.

Appellant introduced a number of witnesses who testified that his general reputation as a peaceable and law-abiding citizen was good. Some of the witnesses for the state entertained a contrary view and expressed the opinion that appellant's general reputation in the respect mentioned was bad. The issue was closely contested. We mention this in view of the fact that it is our opinion that the errors reflected by three of appellant's bills of exception cannot be deemed harmless. The bills referred to will be discussed together.

It appears from bill of exception No. 6 that J. V. Thomas, a witness for appellant, testified on his direct examination that appellant came into his place of business shortly before the officers arrested him, for the purpose of buying some cigarettes. He talked to appellant and had occasion to observe his demeanor. He did not smell intoxicating liquor on his breath, and expressed the opinion that he was sober. On cross-examination the district attorney asked the witness if he had not heard "of the appellant selling whisky unlawfully in Coleman County." Appellant's objection to the question was sustained and the question was not answered. Upon the motion of the appellant the court instructed the jury not to consider such question for any purpose. Nevertheless appellant reserved his bill of exception to the asking of the question on the ground that its prejudicial effect upon the jury could not be withdrawn by an instruction to disregard it.

Bill of exception No. 13 reflects the following occurrence: The state called the sheriff of Coleman County, who, in the presence and hearing of the jury, testified that he had not heard anybody say that appellant's reputation as a peaceable and law-abiding citizen was bad "but he knew that it was of his own knowledge." Upon motion of appellant's counsel the court instructed the jury to disregard the answer. Nevertheless appellant reserved his bill of exception on the ground that the prejudicial effect of the testimony of the sheriff could not be withdrawn from the jury by the instruction of the court.

Bill of exception No. 14 shows that a state highway patrolman who was called by the state to testify that app...