Zysman v. State

• Decision Date: 23 January 1901
• Citation: 60 S.W. 669
• Parties: ZYSMAN v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W. 669

ZYSMAN v. STATE.

Court of Criminal Appeals of Texas.

January 23, 1901.

Appeal from Tarrant county court; M. B. Harris, Judge.

Sam Zysman was convicted of theft, and appeals. Reversed.

D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted for theft of certain personal property under the value of $50, and his punishment assessed at a fine of $250, and 60 days' imprisonment in the county jail. In the view we take of this record, it is only necessary to consider two of appellant's bills of exception:

Bill No. 6 complains that the court permitter various witnesses to testify to the general reputation for truth and veracity of the main prosecuting witness, H. Brodky. It appears in this bill that the evidence shows H. Brodky was not a stranger in Ft. Worth, Tarrant county, and in the community in which he lived, but that he had lived in said community for five years, and was well known therein; that, said Brodky being an important witness for the state, such evidence was highly prejudicial to defendant. By the statement of facts it appears there was no effort on the part of the defense to prove the general reputation of Brodky for truth and veracity was bad, unless the following could be so considered: On the trial Brodky was asked on cross-examination by appellant if he (Brodky) did not take from possession of appellant, while appellant was in said Brodky's home, a certain amount of money, and that, when accused of so doing by appellant, Brodky admitted, in substance, he had so taken the same, making the additional statement that the money would appear back in the same place from which it was taken; that the following night the money was placed back on the chair where appellant's clothes were hanging. Brodky admitted making this statement, giving what he claims to be his reasons for so doing. This is all that appears in the record, so far as we can ascertain, after a careful examination, that tends to intimate anything touching the truth and veracity of witness, or that questions his conduct in the premises, in the least. We do not think this testimony is an attack upon his truth and veracity, but it might show he was guilty of a theft himself; and, if it does so show, it is not an assault upon his truth and veracity. The testimony of the prosecuting witness is in direct conflict with that of appellant; but mere contradiction and conflict between witnesses will not admit of general evidence of the character for truth and veracity of the witnesses, or either of them. Harris v. State (Tex. Cr. App.) 45 S. W. 714; McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; Rushing v. State, 25 Tex. App. 607, 8 S. W. 807; Jacobs v. State (Tyler term, 1900) 59 S. W. 1111. This testimony was very injurious to the right of appellant, in view of the testimony in this case, since, upon the testimony of Brodky, prosecuting witness, the whole weight and burden of the prosecution rested; and, until appellant made some effort to destroy the truth and veracity of Brodky by testimony adduced upon the case, it was clearly reversible error for the state to be permitted to introduce witnesses to prove the truth and veracity of said Brodky in the neighborhood where he lived.

Bill No. 7 complains that, while defendant was endeavoring to prove...