141 S.W. 220 | Tex. Crim. App. | 1911
Appellant was indicted, charged with burglary, and when tried was convicted and sentenced to two years confinement in the penitentiary, from which judgment he appeals.
The appellant in his motion for a new trial vigorously assails the judgment on the ground that the judgment does not support the verdict. Some meat, flour and other things were stolen from Mr. George Furrh, and these articles were taken out of his smokehouse. This much is proven beyond a reasonable doubt, but the question presented is, does the evidence prove that defendant was the person committing the theft? Mr. Furrh states he left defendant and another negro at his house when he went away; both negroes worked for him, and ate at his house. This witness states no fact that would incriminate defendant, except to place him in position to commit the offense. The witness Louis Jones states he was passing Mr. Furrh's when he saw a man come out from between the smokehouse and the kitchen, and that the man had a bundle under his arm and one in his hand. That he took it to be defendant, and spoke to him, saying, "Is that you, Cleveland?" no answer being returned. That on Monday, after two negro women were arrested charged with the offense, this witness says defendant came to him and asked him *4 if he had seen him, and witness told him that he had seen him between Mr. Furrh's smokehouse and kitchen, when defendant replied that it was not him. Witness says he saw somebody and took it to be defendant, because defendant worked at that place. The evidence further shows that defendant fled that night and went from Panola County to Rockwall County, where he was arrested some four or five months later. The witness Mollie Lefoff, in whose house the meat was found, the constable says, first told him that Nelson Adams had given it to her, but on the trial of this case the witness denies making such statement to the constable, and says that after defendant was arrested, and while out on bond, he had admitted to her he carried the meat to her house, and that he had gotten it out of the smokehouse.
The court charged the jury that the witness Mollie Lefoff was an accomplice, and that the testimony other than hers must tend to connect the defendant with the commission of the offense. The only circumstances connecting him with the offense, in addition to her testimony, is that of the witness Jones, who testifies that he saw a man coming from between the smokehouse and kitchen with a couple of bundles, and asked, "Is that you, Cleveland?" and that defendant came to him the following Monday, and asked him if he had seen him (defendant), and when the witness told him he had, defendant fled the county. While this testimony is not very convincing, yet the credibility of witnesses and the weight to be given the testimony under our law is for the jury, and where there is testimony authorizing their verdict, and no evidence offered that it is not true, we are not disposed to disturb the verdict.
The State introduced the witness Louis Jones, and after the witness had testified as hereinbefore stated, the following proceedings were had, which were objected to in bill of exceptions No. 3: "Q. Go ahead and tell me what you told me in that room about that transaction. (Defendant: We object to that suggestion. Court overruled the objection.)
"He said that they had arrested Mollie and Stella for getting Mr. Furrh's meat, and I told Cleveland; I been telling you all the year to let Stella alone, that she has been against you, and that if I was like you I would let her alone, and that if they get together they'll prove you got that meat and they might send you to the penitentiary; and he says, `Well, I didn't get it.'
"Q. To refresh your memory, didn't you tell me there in the room awhile ago that he said that she was innocent of the transaction, and that if it was not for sending him to the pen he would tell the truth about that? `He didn't tell me that.'
"Q. Didn't you state in the presence of Mr. Anderson and Mr. Furrh and me in the room there the next day when you had the conversation with him about the arresting of the women that he said his wife was innocent of the transaction, and that if it was not for *5 sending him to the pen he would tell the truth about it? `That was not me that told you that.'
"Q. Didn't you tell me that you knew that it was Cleveland on that night, and you were able to see that it was Cleveland coming out from between the smokehouse and the kitchen? `I told you that when I was passing Mr. Furrh's I saw someone coming from between Mr. Furrh's house and the smokehouse and I taken it to be Cleveland, and hollered at him, but he didn't answer.' (Defendant: We are objecting to all this; he is trying to build a case on something that didn't happen in the presence of the defendant, and we object to the manner of the question and to the question, and it appears like he is trying to build a case by trying to impeach his own witness and get his own testimony before the jury when the witness has answered his question promptly. District attorney: I am not offering it as original testimony; I am laying a predicate for the purpose of impeachment; he tells me a tale now and told me a different tale in the room awhile ago.)"
In his charge the court tells the jury not to consider this testimony, nor any reference thereto in the argument, but in a case like this where the testimony is not very strong, will the withdrawal cure the error in admitting the testimony? Will its effect on the minds of the jury be thus removed? The district attorney in asking the questions in the form he does, states that the witness had so informed him, and states, when objected to: "I am not offering it as original testimony; I am laying a predicate for impeachment. He tells me a tale now, and told me a different tale in the room awhile ago," thus informing the jury that the witness had so told him. The witness had not testified to any fact that could or would surprise the district attorney, but had merely failed to testify to what he apparently expected him to testify, and being his own witness, was it permissible to permit him to lay a predicate to impeach him, and thus get before the jury evidence otherwise inadmissible? In Bailey v. State,
"The court, however, in the charge to the jury withdrew from their consideration this evidence. It was said in Darnell v. State,
The fact that the defendant was a county convict and had been hired out on bond, would not render inadmissible any statements he might make.
For the error herein pointed out the judgment is reversed and the cause is remanded.
Reversed and remanded.