White v. State

• Decision Date: 24 April 1901
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

62 S.W. 749

WHITE v. STATE.

Court of Criminal Appeals of Texas.

April 24, 1901.

Appeal from district court, Bell county; John M. Furman, Judge.

Mary White was convicted of theft from the person, and she appeals. Reversed.

Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft from the person, and her punishment assessed at two years' confinement in the penitentiary, and she prosecutes this appeal.

On the trial the state proved by one Smith, deputy marshal of the city of Temple, that he took the prosecutor, Shaekey, to the jail, where defendant was, and while she was there confined put on her head a certain hat, and that prosecutor then identified defendant as the party who had stolen the money from him. This was objected to on the ground that it was forcing defendant to give testimony against herself while she was confined in jail, without being warned as to its consequences. In our opinion, this testimony was admissible. Although appellant was in jail at the time, no act or statement of hers was admitted in testimony; merely the fact that the prosecutor identified her. This was after his identification of her on the stand had been impeached by showing that the next morning after the theft he identified another party as the one who had stolen the money from him. Reddick v. State, 35 Tex. Cr. R. 463, 34 S. W. 274.

We think it was competent for the state to impeach Lottie Brown, as it was evidently taken by surprise with her testimony. She was introduced, among other things, for the purpose of proving that appellant had on her hat on the night of the alleged theft; but when interrogated she traversed her testimony as previously given, and testified as an affirmative fact that she and appellant were bareheaded on that night. This testimony, we think, comes under the rule on this subject, which authorizes a party to impeach his own witness. See article 795, White's Ann. Code Cr. Proc., and authorities cited in section 1046.

We believe the court should have instructed the jury on accomplice testimony as to the witness Lillie Blackshear, or at least the court should have submitted to the jury whether or not she was an accomplice, and, if they so found, then to give a charge on accomplice testimony as to her. She stated that on the morning succeeding the night of the alleged theft she let appellant have her hat to disguise herself with, appellant stating to her at the time that she had "touched" a man the...