Bennett v. State
64 S.W. 254
Tex. Crim. App.
1901
Check Treatment
HEEDERSOE, Judge.

Appellant was convicted of murder in'the first degree, and his punishment ‍​​‌‌‌​‌​​​​‌​‌​‌‌​‌​‌​​​​‌‌​​‌​​‌​‌​​​​‌​​‌​​‌​‌‍assessed at confinement in the penitentiary for life; hence this appeal.

This is the second appeal. The facts on this аppeal ‍​​‌‌‌​‌​​​​‌​‌​‌‌​‌​‌​​​​‌‌​​‌​​‌​‌​​​​‌​​‌​​‌​‌‍are substantially the same as in the former. 39 Texas Crim. Rep., 639. Appellant assigns as error the actiоn of the court in failing to limit certain testimony, to the effect that appellant had been indictеd and prosecuted for other felonies to the purpose for which it was introduced, to wit, as going to the credit of appellant as a witness. It is shown that appellant took the stand as a witnеss on his own behalf, and on cross-examination by the State it was proved that he had been indicted for horse theft and cattle theft in Johnson County, and for cattle theft in two or three cases in Bosque County, and for train robbery in Hill County. On reexamination it was shown that he was convicted in two cases; and, new trial being granted, was subsequently acquitted; and the others were either dismissed against him or he was acquitted. These indictments were ‍​​‌‌‌​‌​​​​‌​‌​‌‌​‌​‌​​​​‌‌​​‌​​‌​‌​​​​‌​​‌​​‌​‌‍presented against defendant about ten years before the indictment in this cаse. On the trial the court utterly failed to limit this testimony. It is contended that this is such error as to cause a reversal of this case. Before the act of March 12, 1897,—being article 723, White’s Annotated Code of Criminаl Procedure,—the failure to limit testimony introduced for the purpose of impeaching or discrediting a witness, which could be used by the jury for any other purpose detrimental to defendant, was fundamentаl error, which would cause a reversal of the case, whether excepted to or not. Sinсe the passage of said article the same rule applies, “provided the failure to so charge the jury is taken advantage of by bill of exceptions at the time or in motion for new trial.” Pаris v. State, 35 Texas Crim. Rep., 82; Owens v. State, 35 Texas Crim. Rep., 345; Martin v. State, 36 Texas Crim. Rep., 125; Wilson v. State, 37 Texas *243 Crim. Rep., 374; Estill v. State, 38 Texas Crim. Rep., 255. Unquestionably, said testimony was admissible for only one purpose; that is, ‍​​‌‌‌​‌​​​​‌​‌​‌‌​‌​‌​​​​‌‌​​‌​​‌​‌​​​​‌​​‌​​‌​‌‍as .going to the credit of appellant as a witness. Carroll v. State, 32 Texas Crim. Rep., 431; Brittain v. State, 36 Texas Crim. Rep., 406. But, without an instruction on the subject, would the jury confine their сonsideration of said testimony to that purpose alone? Would they know the object, of its introduction? It must be remembered that juries are, for the most part, unacquainted with the rules of law; and therefore the necessity on the part of the court to instruct them with reference to their duties. Of course, if they knew this was impeaching testimony, or if it could be appropriated by them to no other purpose than to discredit appellant, the failure to instruct in regard thereto would not prove рrejudicial to appellant. But it must be remembered that this was a case of circumstantial evidеnce, in which many facts, not otherwise admissible, are introduced for the purpose of bearing on or tending to show appellant’s guilt; ‍​​‌‌‌​‌​​​​‌​‌​‌‌​‌​‌​​​​‌‌​​‌​​‌​‌​​​​‌​​‌​​‌​‌‍and very naturally the jury would be prone to consider any fact or circumstance tending to show appellant was a man of bad character,—as that he hаd been accused of theft of cattle and horses and train robbery, and had been indicted therefor,—and it would tend to make them believe appellant was of such a character as would assassinate a woman. Hot being informed of the purpose of the introduction of this sort‘of testimоny, we take it they would more likely consider it for the purpose above indicated than for the impeachment of appellant as a witness. At any rate, the possibility that they might do so, in the absenсe of a charge directing their attention to the testimony, and limiting the consideration of it to the impeachment of appellant as a witness, would constitute reversible error.

Appellant also complains of the. charge of the court on principals, said charge treating appellant and Hanks as principals in the commission of the offense.' As we understand the theory of the State, which is supported by evidence, the contention is that appellant alone cоmmitted the offense, while appellant himself offers as a theory or hypothesis that Hanks may have committed the offense. We fail to find any testimony indicating that these parties acted together in the commission of the offense. It may be a question—considering that the charge instructed the jury that if thеy believed that appellant, under circumstances showing express or implied malice, shot and killed deceased with a pistol, either alone or acting with Hanks, to find him guilty—whether or not this was such error as was calculated to injure appellant, inasmuch as the charge required appеllant to be present, and to do the shooting himself. Still, we think the charge was calculated to mislead and confuse the jury as to the real issues in the case on this line. As stated before, neither party сontended that the two were together committing the homicide, and the proof not tending to show that, it should not have been charged. It is not necessary to discuss other assignments, but, for the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded-.