142 S.W. 1181 | Tex. Crim. App. | 1912
This conviction was for hog theft. It was a closely contested case on the facts. The state introduced evidence to the effect that appellant killed the hog. His evidence is a strong denial. The state witnesses were impeached as to general reputation; such reputation was shown to be bad for veracity.
The statement of facts and bill of exceptions seem to be practically the same except what the answer would have been, had she been permitted to testify, to wit, that she would have testified to bitter and intense enmity toward the defendant, and that she had expressed a wish that he be sent to the penitentiary. The court then excluded the testimony. We are of opinion this testimony should have gone to the jury. This was the owner of the hog, and her feeling and animus toward the defendant ought to have been permitted to go to the jury in weighing her testimony. This matter has been before the court in a great number of eases, and evidence of this sort has always been held to be material. In Rosborough v. State, 21 Tex. App. 672, 1 S. W. 459, this language is found: “It will be seen that the rule is limited to collateral and irrelevant inquiries, and this is what renders it inapplicable in this instance; for the animus, the motive, or the ill will of a prosecuting witness — the injured person— is never a collateral or irrelevant question in a criminal case. The bias, the prejudice, thus shown is, in most cases, of the utmost importance, and is always material in order to enable the jury to form a correct judgment as to the credit to which the testimony of the witness is entitled. See the rule discussed in Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188; Newcomb v. State, 37 Miss. 383; Kent v. State, 42 Ohio St. 426; s. c., reported with a learned note in 6 Crim. Law Mag. p. 520. The proposed testimony was well calculated to show bias of the witness, and it was error to exclude it. There being so great a conflict between the testimony of the witness to be affected by this proof and that of other witnesses in the case, it was of the greatest importance that the evidence should have been allowed; and thus the error is material and requires a reversal of the judgment.”
This rule has been followed in subsequent cases. The latest that the writer has noticed is O’Neal v. State, 57 Tex. Cr. R. 249, 122 S. W. 386, where this language was used:
This testimony should have been permitted to go to the jury, and we cannot agree with the court in his statement before the jury and in answer to the objection, that her answer was sufficient when she stated that it was for the court to say whether she wanted him sent to the penitentiary. It was not for the court. The court did not know her feeling; was not supposed at least to know, and could not answer for her. She knew whether or not, and could answer the question as to her feeling in regard to sending appellant to the penitentiary. It was not for the court, and he could not answer the question, and it was not a sufficient answer. We are of opinion the judgment must be reversed for this under the authorities cited.
There was also an attempt to get additional testimony before the jury, but the bills are so indefinite they cannot be considered. The testimony seems to have been sought in the way of contradiction or impeachment of the state witnesses, especially the owner and the family of the alleged owner, to this effect, that they first accused a young white man in the neighborhood of stealing the hogs, and were informed that they had better not do that, better change their testimony, as they might get into trouble, legal and perhaps otherwise. If this testimony is offered in proper shape upon another trial it should be permitted to go to the jury. The record is so indefinite about this matter that it cannot be considered on this appeal, and it is only mentioned so that if properly presented upon another trial it will not be the subject of bills of exception in case there should be a subsequent conviction. ,
The judgment is reversed and the cause is remanded.