110 S.W. 920 | Tex. Crim. App. | 1908
Appellant was convicted in the County Court of Brown County on January 29, 1908, of selling intoxicating liquors in said county in violation of the local option law, and his punishment was assessed at a fine of $100 and sixty days confinement in the county jail. He has brought the case to this court and presents as grounds for reversal several very interesting questions.
1. The first assignment of error relied upon by appellant for reversal of the cause is that "the court erred in refusing to let defendant's counsel see a certain paper claimed to have been a statement made by the prosecuting witness before the grand jury which said statement was exhibited to and examined by said McGarity while a witness on the stand." The defendant's counsel stated to the court at the time that he desired to examine said paper and statement for the purpose of cross-examining said witness. The proposition asserted under this assignment of error is that "when the memory of a prosecuting witness, while on the stand is refreshed on a material point by a paper put in his hands and examined by him, the adverse party has the right to see such paper for the purpose of cross-examining the witness, and to deny this right is a reversible error." In order to pass upon this question intelligently a brief statement is necessary. The only witness produced by the State, or for that matter, the only witness sworn for the State or appellant was Jim McGarity. On his direct examination he testified *492
that on January 5, 1908, he went to the club room of one Jim Byrd on East Baker street and that appellant was in there and was waiting on the trade, and that there was a negro behind the counter helping him; that shortly after he went in, the appellant gave him a drink of whisky for which he did not pay anything but that same was a gift; that after that he bought six or seven glasses of soda water from the appellant, and from the negro porter who was assisting in the club room; that as well as he remembered, after the drink of whisky was given him, the next drink he got was a drink of soda water; that after that he does not remember from whom he got the soda water but that he does know that he got one other from the appellant, and a number from the negro; that for each of these glasses of soda water he paid 20 cents; that from all he got he knows he got pretty full, but that he could not state whether or not either of the drinks of soda water he got from the appellant and for which he paid him, had anything intoxicating in it, but that all he knows about it is that all he got made him pretty full. On cross-examination he testified as follows: That he could not say that any particular drink that he got from the appellant had intoxicating liquor in it, except the one appellant gave him and for which he did not pay him anything; that as well as he knows each of them may or may not have had whisky in them; that his menory is not clear on this point; that as to fixing any particular drink and saying it had whisky in it or other intoxicating liquor, he could not do it. This closed the cross-examination. After this, the county attorney exhibited to the witness a paper, which he stated at the time to be the record of said prosecuting witness' evidence before the grand jury, and after this the witness testified that he could not say whether or not the first drink of soda water had intoxicating liquor in it, but that he now would state that the second glass of soda water that he got from the appellant did have intoxicating liquor in it, and that he had paid the appellant 20 cents for this glass. In connection with this matter it appears from the bill of exceptions reserved at the time and duly approved by the court, that appellant's counsel asked that he be permitted to see the statement so exhibited to said witness, to the end that he could properly cross-examine him relative to same. The county attorney thereupon stated that the statement contained other evidence given before the grand jury of other transactions with other and different parties and for that reason objected to appellant's counsel seeing the same, and thereupon the court stated that he would not require the county attorney to show said instrument or any part thereof so exhibited to said witness to appellant's counsel, nor would the county attorney do so. It is recited in the bill as a fact that appellant's counsel did not see said instrument or know the contents of same while cross-examining said witness or while he was a witness on the stand in this case. We think this action of the court was erroneous. While it has been held, and is well settled, that a witness may be permitted and allowed to examine records and memoranda made by him in respect to any transaction about which he is *493
called on to testify, which may or does so refresh his recollection, there would seem to be no reason why, when he has so refreshed his memory by reference to such memoranda or writing, the party adverse to him should be shut off from an examination of the memoranda so produced — denied the right to inspect same and to ascertain, in the first place, as to whether it is such paper as does or should refresh the witness' memory, and as to whether or not the matters contained in it are in accord with the testimony given by the witness orally on the stand. In the case of State v. Bacon, 98 Am. Dec., 616, almost this identical question arose. It appears from the statement in that case that on the trial the prosecution introduced one Kellogg as a witness who, during his examination in chief, referred to his pocket memorandum to refresh his memory. On cross-examination he refused to allow the respondent's counsel to examine it on the ground that it contained private memorandum of his acts of a public nature as a detective, and that he could not submit it to an examination without a breach of confidence and a personal injury. The court in that case was requested to direct the witness to allow the examination, but the request was refused, to which the respondent excepted. The opinion in that case is so clear and expresses so well our views that we make this liberal excerpt: "On the trial the witness was at liberty to refer to the memorandum, on the ground that it aided his memory in respect to the subject of inquiry involved in the prosecution, and to which his testimony related. This is allowed to enable the witness to testify with more precision and accuracy than he otherwise could, and proceeds upon the ground that the memory is often at fault and imperfect. An entry or memorandum, therefore, made by the witness himself, at or near the time of the transaction in question, and before it has in any degree faded from his memory, which is full and complete, so as naturally to suggest and aid the mind in recalling what really transpired, is a strong ground of reliance and belief. It would therefore seem that it is a legitimate subject of inquiry and examination with reference to a witness referring to entries on the stand, for the purpose of refreshing his recollection, whether the memorandum thus used and referred to really does assist his memory or not. That must depend in some measure upon its character, and that can be ascertained only by an inspection and cross-examination in respect to it; as when and by whom made, its appearance, genuineness, fullness, and faithfulness. Text-writers treating the subject seem to entertain this view: `If the memory of the witness is refreshed by a paper put into his hands, the adverse party may cross-examine the witness upon that paper.' 1 Greenl. Ev., sec. 476. `It is always,' says Phillips (vol. 1, p. 289), `and very reasonable when a witness speaks from memoranda that the counsel should have an opportunity of looking at them when he is cross-examining the witness'; and Starkie (vol. 1, p. 179), asserts the same doctrine. He remarks: `The witness may be cross-examined from it.' See also part 1, Cowen and Hill's Notes, 2d ed., 757; Rex v. Ramsden, 2 Car. *494 P. 603; S.C., 12 Eng. Com. L. 758. The view as presented by these authorities is alone consistent with the party's right to cross-examine the witness upon whose credibility the question in issue somewhat depends, and which, it is said, constitutes a `strong test, both of the ability and willingness of the witness to declare the truth.' In no other way can his accuracy and recollection be ascertained and tested, which in all cases are proper matters of inquiry with a view to weighing his evidence, and the range of inquiry is open to this extent. And a witness cannot deprive a party of this right, or shield himself from the obligation of disclosing the whole truth to this end, or refuse the production and examination of a memorandum which is in court, and upon which he relies and refers, for the reason disclosed by this case; certainly not, unless it appears to the court that he had a reasonable ground of belief that he would subject himself to personal injury in consequence of producing and allowing an examination of it. This decision of the recorder was therefore incorrect." In the notes to this decision Mr. Freeman, the learned compiler of that justly celebrated series, has this note containing a statement of the decisions in respect to this matter: "In cases of this kind, where the witness has no independent recollection of the facts, and depends upon his knowledge that the memorandum used by him is correct, it must be produced. The writing or memorandum must be delivered to the opposite party for his inspection, that he may cross-examine the witness in regard to it, and it may be shown to the jury, not for the purpose of establishing the facts therein contained, but for the purpose of showing that it could not properly refresh the memory of the witness. The necessity of producing the memoranda, and the reasons which require its production, are very clearly and fully set forth in the principal case, and need not be further stated here. The writing, however, does not thus become evidence by being thus produced, nor need it be such a paper as would be admissible, for it is not the paper that is evidence, but the recollection of the witness. These views are clearly supported by Wernwag v. Chicago, etc., Ry. Co., 20 Mo. App. 473; Davis v. Field,
2. The next assignment of error is that the court erred in refusing to permit appellant to show by the prosecuting witness McGarity that he, McGarity, was highly intoxicated and in a drunken condition as a result of having drunk the liquor which he testified he bought from the appellant, and to further show all the facts concerning said McGarity's drunken condition. It is the contention of appellant that it is always permissible to show that a witness was in a drunken condition at or about the time the transaction occurred about which he is testifying, for the purpose of testing the memory and capacity of the witness. The testimony admitted tended strongly to show that appellant was quite drunk, and we think contains intrinsic evidence that his inability to remember the precise facts was due to this condition. The bill as presented is not as full as might be desired but substantially we think sustains appellant's contention. We think the rule in any case should be, where a witness is produced and undertakes to give a statement of the facts coming under his observation, transactions to which he is a party and on which the guilt of a citizen is sought to be established, that with a view of testing the credibility of the witness, his opportunity for observation, the state of his memory, the condition of his mind and all that, that it should and would be proper to interrogate the witness as fully as might be necessary in respect to his condition of drunkenness or sobriety. The bill distinctly states that the testimony sought to be adduced in respect to the witness being drunk was for this purpose and this purpose alone. We think it should have been received and was unquestionably proper evidence. Lewis v. State, 33 Tex.Crim. Rep.; State v. Greer, 41 Am. Rep. 296.
3. The next ground urged for reversal is the action of the court in overruling appellant's motion to quash the venire of jurors in this case and in requiring him to be tried before a jury selected by a deputy sheriff and not by a jury selected by a jury commission. In order that this matter may fully appear, we make the following statement from the record: "Appellant's counsel in their motion to quash the venire because the jurors tendered him were not chosen and selected by the jury commission in Brown County, Texas, as required by law, but the county judge of that county intentionally instructed them not to select a jury for the week of court on which the trial was had, being the fourth week of said term. Their contention was that none of the causes or conditions under which a sheriff is permitted under order of the court to summon a jury existed, and no ground existed as a basis for the sheriff to select a jury for the trial of this appellant. Testimony was taken on this motion and the following substantially is *497
the evidence. Judge A.M. Brumfield, county judge of Brown County, and the judge presiding over this court, testified that at the time the jury commissioners were selecting jurors for this term of county court, he purposely and intentionally instructed them to select jurors for three weeks of the term only, believing at the time that that would be enough jurors to dispose of the business at this term of court, but after holding court for three weeks, he found that there were still a number of civil and criminal cases to be tried, which he thought would justify him in having the sheriff select a jury for the fourth week, being the week during which this case was tried, and that thereupon he directed the sheriff on Monday of the fourth week to summon a jury. The deputy sheriff who was sworn testified in substance that as instructed by the county judge, he selected a jury, who resided in the City of Brownwood; that he made no effort to get men from the different parts of the county but selected jurors as he came to them, that is, he selected men whom he believed to be honest men and sober men. In this state of the proof the motion was overruled and appellant required to proceed to trial before a jury summoned by the sheriff. Article 3150 of our Civil Statues is as follows: "If from any cause the jury commissioners should not be appointed at the time prescribed or should fail to select jurors as required, or should the panels selected be set aside, or the jury lists returned into court be lost or destroyed, the court shall forthwith proceed to supply a sufficient number of jurors for the term under the provisions of this title, and may, when it may be deemed necessary, appoint commissioners for that purpose." Article 695 of the Code of Criminal Procedure is as follows: "When from any cause, there are no regular jurors for the week from whom to select a jury, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient, and from those summoned a jury shall be formed as provided in the preceding articles of this chapter." The two clauses of the civil and criminal codes quoted above were considered by this court in the case of Sanchez v. State,
"We are of opinion, independently of the cases cited, that authority for the court's action in the premises might well be predicated upon the spirit and intent of the provisions of article 3022 (3150) of the Revised Statutes. These provisions are not in conflict with article 658, Code of Criminal Procedure, but leave it discretionary with the court, "when it may deem necessary," to appoint jury commissioners where they have not been appointed in time to make selection of jurymen; and no good reason is seen why the court cannot as was done, utilize for that purpose the services of the commissioners already appointed to select for the next term of court."
The case of Hurt v. State, 51 Tex.Crim. Rep. 101 S.W. Rep. 806, in substance recognizes the rule that where the jury commissioners fail to select a jury for the ensuing term through the inadvertent oversight of the court, the court was authorized by such fact to direct the sheriff to summon a designated number of persons from whom a jury might be selected, and distinguishes that case from the case of White v. State,
4. There are some other questions raised in the record which relate mainly to the charge of the court and special charges requested by counsel for appellant. We think the charge of the court is sufficient and the special charges asked by counsel were in effect charges upon the weight of the evidence.
For the grounds stated above, the case is reversed and the cause remanded.
Reversed and remanded.