Wilson v. State

• Decision Date: 03 March 1897
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W. 373

WILSON v. STATE.

Court of Criminal Appeals of Texas.

March 3, 1897.

On motion for rehearing. Granted. Judgment reversed.

For former opinions, see 35 S. W. 390, and 38 S. W. 624.

HENDERSON, J.

A motion for rehearing was granted at a former term of this court, and the former opinion of the court reversed, and the judgment of the lower court affirmed. It again comes before us on motion for rehearing filed by appellant. The only question to be considered is the failure of the court to limit the purpose of certain impeaching testimony. The defense set up to the charge of theft was that appellant had bought the head of cattle in question from his brother, Alex Wilson. On the trial, Alex Wilson was introduced by the appellant, and testified that he sold defendant a red heifer on December 24, 1894. (The state's proof tended to show the animal stolen was a red heifer, belonging to another person, which was taken on said December 24, 1894.) On cross-examination of this witness by the state, he was asked if he did not testify in the grand-jury room, at the last term of the district court, that he had not sold or let his brother, Willis Wilson, have any cattle, and he answered that he had not so testified. The state was then permitted to introduce two members of the grand jury, who testified that said Alex Wilson was examined as to said matter before the grand jury, and they stated that said witness did state on his examination before the grand jury that he had not sold his brother, Willis Wilson, any cattle at said time. Appellant insists that the court should have limited this testimony to the sole purpose for which it was introduced, to wit, for the purpose of impeaching the said witness Alex Wilson, although not requested so to do, and no exception was taken to the failure of the court so to charge; yet it is insisted that this was fundamental error, and he cites us to Paris v. State (Tex. Cr. App.) 31 S. W. 855; Maines v. State, 23 Tex. App. 576, 5 S. W. 123; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Davidson v. State, 22 Tex. App. 372, 3 S. W. 662. The principle to be extracted from these cases is well settled in the case of Maines v. State, supra, cited by counsel, and we quote therefrom as follows: "The general rule is that whenever extraneous matter is admitted in evidence for a specific purpose incidental to, but which is not admissible directly to prove, the main issue, and which might tend, if not explained, to exercise a strong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to the right of the party, then it becomes the imperative duty of the court in its charge to so limit and restrict it as that such unwarranted results cannot ensue; and the failure to do so will be radical and reversible error, even though the charge be not excepted to." And it will be found on an examination of the cases cited by counsel that from the very nature of the testimony it was, unless limited, calculated to injure the rights of the appellant. Besides these, there are a great number of cases on the same line. In some of them a charge is required, because there is danger of the conviction of defendant for some offense proved other than charged in the indictment. In other cases, while the evidence is admissible for the purpose of impeachment, it is calculated to be unduly used by the jury for some other purpose than as impeachment testimony. The converse of this is equally true; that is, where the testimony can be used for...