Baldwin v. State

Nov 21, 1917
No. 4702
Reporters:
, , ,
Before:
Davidson

Rehearing

On Motion for Rehearing.

On a previous day of the term the appeal was dismissed for reasons stated in the opinion. The defects have since been cured and a motion for reinstatement of the case аnd hearing on its merits reguested. This will be granted, and the case disposed of on its merits.

The case fоr the state was made by the testimony of the witness Gibson Dodd, who testified that on the night of December 1st, at Bill Hughes’ residence, he saw’ defendant with Bill Hughes between Hughes’ house and the barn, and saw defendant with а pistol in his hands. “He had it in both handsf kind, of holding it out in front of him.” This was the state’s case. On cross-examination a predicate was laid to contradict him. The defendant’ introduced Hughes for ‍​​‌‌​‌​​​‌‌‌​​​‌‌‌​​‌‌‌‌​‌‌​​‌‌‌‌‌​‌​​‌​​‌‌​​​​‌‍this purpose, Hughes stating that he did not see appellant with a pistol at the time. He denied being present at the point’ designated by the witness Dodd at the time stated by Dodd. He also denied seeing appellаnt with a pistol. He stated he was at the barn with appellant at a different time than that indicatеd by Dodd, but did not see appellant with a pistol at any time that night. Appellant denied by all of his testimоny having a pistol that night.

[2, 3] A bill recites that, while the witness Dodd was on the stand testifying, he was asked by appellant’s counsel what state of feeling existed between him and the defendant, to which witness answered that it was good.’ He was then asked the further question: “Is it not a fact that you and defendant had a difficulty’ since the party at Bill Hughes’ down at Rhodes’ store?” Witness answered in the negative. He was then further аsked if it was not a fact that he started to hit defendant with a quart bottle of whisky, to which witness answered hе did not; and thereafter while defendant was on the stand testifying in his own behalf his counsel propoundеd to him the following question, “What is the state of feeling between you and the prosecuting witness, Gibson Dodd?” to which the defendant would have answered, if permitted to do so, that the feeling between himself and prosecuting witness was bad. Appellant was again asked this question: “State whether or not yоu and prosecuting witness Gibson Dodd had a difficulty since the party at Bill Hughes’ down at Rhodes’ store?” The dеfendant would have answered, ‍​​‌‌​‌​​​‌‌‌​​​‌‌‌​​‌‌‌‌​‌‌​​‌‌‌‌‌​‌​​‌​​‌‌​​​​‌‍if permitted to do so, that he did have such difficulty. He was then asked “whеther or not he started to hit you with a quart bottle of whisky,” to which he would have answered, if permitted tо do so, that the prosecuting witness Dodd did try to hit him with a bottle of whisky. The state’s objection was sustained, and the witness not permitted to answer, but would have answered as indicated. This testimony was sought for the рurpose of impeaching and showing the animus of the witness Dodd against defendant. The court qualifiеs this bill as follows:

“The objection to the testimony set out in the bill was sustained for the reason that the witness Dodd testified on tlie trial that he became a witness in the case after he had been called before the grand jury, and that he testified to the same facts before the grand jury that he was tеstifying to on the trial, and the court ‍​​‌‌​‌​​​‌‌‌​​​‌‌‌​​‌‌‌‌​‌‌​​‌‌‌‌‌​‌​​‌​​‌‌​​​​‌‍held that the defendant could show the state of feeling betweеn defendant and the witness Dodd prior to and at the time the witness Dodd went before the grand jury but not aftеr-wards, which question -defendant’s counsel refused to ask.”

This hill of exceptions clearly shows errоr. It is not necessary that the state of feeling between the parties should be relegated tо the time of going before the grand jury and prior thereto. If his state of feeling was bad at the time of the trial, this could be shown both to impeach and to show his animus. The animus relates to his testimony to bе considered by the jury. Had he been permitted to be impeached,; he might have stated that his state of feeling was good at the time he went before the grand jury, and that his testimony was the same then as delivered before the jury; but that would not preclude the defendant from showing the contrary, аnd even the corroborating statement of the witness would not be permissible unless he had been impeached, and in this instance the court refused to permit the impeachment, or to show the animus.

For these errors, the judgment is ‍​​‌‌​‌​​​‌‌‌​​​‌‌‌​​‌‌‌‌​‌‌​​‌‌‌‌‌​‌​​‌​​‌‌​​​​‌‍reversed, and the cause remanded.





Lead Opinion

DAVIDSON, P. J.

Appellant was cоnvicted of unlawfully carrying a pistol, his punishment being assessed at .a fine of $100.

. [1] There are two troublеs in the record which preclude the consideration of the matters presented for revision. The first is the record does not contain notice of appeal, and, second, there is not found in the transcript an order of the court allowing the filing of statement ‍​​‌‌​‌​​​‌‌‌​​​‌‌‌​​‌‌‌‌​‌‌​​‌‌‌‌‌​‌​​‌​​‌‌​​​​‌‍of facts and bills of exception after the termination of the term of court. For these reasons the appeal cannot be considered, and, if it could be, without proper order in the record аuthorizing the consideration of these matters, they could not be reviewed.

For the reason indicated, viz. want of notice of appeal, the appeal will be dismissed.

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