White v. State

• Decision Date: 28 November 1917
• Docket Number: (No. 4663.)
• Citation: 198 S.W. 964
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

198 S.W. 964

WHITE v. STATE.

(No. 4663.)

Court of Criminal Appeals of Texas.

November 28, 1917.

Appeal from Hill County Court; R. T. Burns, Judge.

Curby White was convicted of unlawful speeding in violation of a city ordinance, and he appeals. Reversed and remanded.

J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of unlawfully speeding in the city of Hillsboro under article 815, P. C., and assessed the lowest punishment. The information alleged that appellant on or about March 22, 1916, unlawfully drove and operated an automobile at a greater rate of speed than 15 miles per hour upon East Elm street, a public street there situated, the said street not being a race course or speedway, and was in the built-up portion of the city of Hillsboro, and within the corporate limits thereof.

While it was unnecessary to allege upon what particular street in the corporate limits of Hillsboro appellant so unlawfully ran and operated his automobile, yet as the pleader alleged that it was upon East Elm street, it was necessary to prove that it was upon this particular street. See authorities collated in 2 Vernon's Crim. Stats. p. 199, note 2.

Robert Erwin was the state's main witness, and he testified that appellant ran his machine at an unlawful rate of speed as alleged. The court should have permitted appellant on cross-examination to prove by him, if he could, that he was employed by the city council or county attorney to follow automobiles for the purpose of ascertaining whether they were running at an unlawful speed, and for each person that was arrested and convicted and he would swear they were traveling at a greater rate of speed than 15 miles per hour he would be paid, and expected to be paid, a sum of money in each case where conviction was obtained. This was a legitimate subject of cross-examination of him. If he had so testified it might have affected his testimony. It is always permissible to prove any material fact which would go to show bias, interest, prejudice, or any other mental status of a witness which, fairly construed, might tend to affect his credibility or the weight of his testimony. 1 Branch's Ann. P. C. § 163. It might be as appellant was assessed the lowest punishment in this case and there was no controverting testimony as to the rate of speed he ran his machine, this error might not be of such material effect as to...