Bostick v. StateBostick v. State
- Reporters:
- Before:
- White
This is a second appeal from a judgment of conviction in this case, the punishmеnt being assessed each time at imprisonment in the penitentiary for a period of ten years. See Bostick v. State, 10 Texas Ct. App. 705. As in the former appeal so in this, the statement of facts shows that the evidence of the State’s witness Foster “was the strongеst, most pertinent and pointed evidence adduced against the defendant uрon the trial.” In the only bill of exceptions appearing in the record we find, “ thаt the witnesses were, on motion of the district attorney, placed under the rule, аnd after the State had introduced her witnesses in chief the defendant introduced his аnd rested; and the State then introduced witnesses in rebuttal, when, before the argument оf the case had commenced, the defendant offered to introduce Mr. Kеnnon, Esq., an attorney engaged in the prosecution of the case, and who had represented the State on the former trial hereof, had at the spring term, 1881, of this court, and offered to ■ prove by said witness Kennon that the State’s witness Oayene Foster testified on the trial of this cause when last on trial that she recognized thе defendant Bostick by the light of the moon,—that it was a bright moonlight night, and the fire was just beginning fairly .to burn, ” etc. On her cross-examination when on the stand, the witness Foster had been askеd by defendant’s counsel if she had not stated at the last term of the court that she recognized Tom Bostick by the moonlight, and she had answered that she had not so statеd. The court refused to permit defendant to make the proof imposed as above by the witness Kennon, and in expía
The question is, was the evidence admissible, and were the rеasons of the court for refusing it correct and satisfactory? Foster being the mаin witness for the prosecution in identifying and connecting defendant with the time and at thе place of the burning, it was of vital importance to defendant, could he do so, to weaken or break down her testimony by showing that she had made conflicting stаtements with regard to the matter. This mode of impeaching a witness is a common рractice, and it is oftentimes a most effective method of destroying the evidеnce of an adverse or hostile witness. It is elementary in fact that “ a witness cаlled by the opposing party can be discredited by proving that on a former occasion he made a statement inconsistent with his statement on trial, provided such statement be material to the issue.” Whart. Crim. Evid. § 482. And we are not aware of any rulе which inhibits cumulative evidence as to the disputed fact. On the contrary, in many instanсes the more evidence the impeaching party could adduce, the greater likelihood of his establishing the proposed contradiction. Nor was it а sufficient reason for refusing the introduction of the evidence that Riney Beverly, the defendant’s witness, had testified to the same fact. One impeaching witness may confuse the mind as to what to believe, whereas two, three or four others concurring may confirm the matter and give belief a sure foundation to
If the evidence was legitimate, and if it was important to the defendant, then the fact that it was not introduced in its regular оrder was no sufficient reason for its rejection under our statute, which requires that “ the court shall allow testimony at any time before the argument is concluded, if it appear that it is necessary to a due administration of justice.” Code Crim. Proc. art. 661.
We are of opinion that the court erred in excluding the evidence, and the judgment is reversed and the cause remanded.
Reversed and remanded.