46 S.W.2d 314 | Tex. Crim. App. | 1932
— Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.
A party in which were three young girls about fifteen or sixteen years of age, Barney Cage, a married man about forty-five years of age, appel
A girl, whom we will Call N, was the first witness. Only so much of her testimony as bears on the issue of transportation of intoxicating liquor, will be discussed. She said that at a fork of the road appellant and Cage took a drink; that she did not know what they drank; that she did not smell it. They drank out of a fruit jar. The party went seven or eight miles and appellant and Cage had another drink; that the drinks did not seem to affect appellant, but Cage seemed to get drunk and talked about how much property he had along the road; that he got richer every time he took a drink. This witness testified that she had smelled whisky, but as to this “Stuff that these men drank smelling like whisky, I don’t know; I didn’t get to smell it.”
Bland testified that said parties had a jar of something which he told them he did not like the smell of, and to keep it away from him. Bland was driving the car. He said that appellant and Cage drank from the jar. He testified that Cage was drunk before they left town and drunk all the time they were gone and when they got back. Asked as to the smell of the contents of the jar, witness said it smelled sour, but that he had never smelled whisky, unless what was in this jar was whisky. He said that what Cage drank started him to singing, and when he walked he would reel, but did not say that the last mentioned condition was the result of what Cage imbibed while on the trip. He reiterated that Cage was drunk when they started out and all the way during the trip.
Another of the girls whom we will call B, testified, and referring to what the men drank, she said she guessed it smelled like whisky; that she had smelled whisky one time when she was sick, and as well as she could remember it smelled like that. She said they had a pint jar. Another witness testified that he saw Cage about 6:30 p. m. on the day of said trip, and after the party returned, and that Cage was then drunk.
At this point the state rested her case. Without introducing any testimony appellant also rested his case. The state then brought back the first girl who had testified, put her on the stand, and she swore at this time that the contents of the jar in question was whisky, and that she knew it because she smelled it; that she knew whisky by smelling it; that this liquor did not smell like home brew; that she had smelled plenty of whisky.
These facts have been gone into thus at some length as illustrating the proposition that the state seemed doubtful of its case when it first rested, and accordingly brought back on the witness stand the girl who
It is undoubtedly true that within its province of passing on the credibility of witnesses, the jury had the right to accept as true the last testimony of this witness, and in such case, if there were no other matters in the record which could or might have harmfully influenced said jury, and possibly led them to find appellant guilty, we would not be disposed to disturb the verdict.
By two bills of exception complaint is made of the fact that over the objection of appellant, and after both sides had closed their testimony, the state put on two well known and credible witnesses who testified that the general reputation of appellant for being a peaceable and law-abiding citizen was bad in the community in which he resided. That this was error under the facts of this case seems plain. True, appellant’s father had taken the witness stand and testified without objection that appellant had never been convicted - of a felony.
We learn from the discussion appearing in each of said bills of exception, had between the court and counsel for both the state and appellant, that appellant had filed an application for a suspended sentence.herein, — ■ but that the trial judge had stated he would not submit to the jury the issue as to such suspension of sentence. We nowhere find in this record any other showing that application for such suspended sentence had been filed. None appears in the record. The court below, in view of the fact that chapter 138, Acts Regular Session, 42nd Legislature, 1931, (Vernon’s Ann. P. C., art. 689) allowing suspended sentences in liquor cases, regardless of age, had not become effective at the time of this trial, was correct in declining to submit the issue of suspended sentence to the jury.
The evidence of appellant’s bad character had not been introduced at the time the application for suspended sentence was in effect withdrawn by the announcement of the court, but was admitted afterward. The application for suspended sentence being withdrawn, this issue was not before the jury, and evidence pertinent thereto- or otherwise made admissible by the filing of same, would not be admissible after such plea was withdrawn. See Harmon v. State, 119 Texas Crim. Rep., 426, 45 S. W. (2d) 583, opinion handed down January 20, 1932. Few if any more harmful facts can be put before a jury trying one for crime, speaking generally, than that in the estimation of those who live about him, the accused is a bad man, has a bad reputation. As with proof of a good reputation, — which has often been held enough to turn the scale toward
Bill of exception No. 5 sets out that state witness Bland had given certain testimony, ending with the statement that he did not know what the contents of the jar carried in the car smelled like. At this point the court had the jury removed, and the following took place as appears in the bill of exception: The judge said, “ ‘Did you know you were under oath, that you are sitting there telling lie after lie; you have sworn lie after lie; Mr. District Attorney, I want you to file a complaint against him as soon as this thing is over, this is no foolishness; you think you are going to get by the court, you had better tell the truth,’ and the witness answered that he was telling the truth ‘Whereupon the court stated, You are not doing any such thing,’ and defendant’s counsel excepted and asked for a bill of exception.”
This bill is qualified by the following statement of the court below:
“With the following explanation, — to-wit, it was evident in the mind of the court and all who heard the witness testify not only by his conduct, but his dodging and making evasive answers to the questions of the district attorney that he was not telling the truth, and this court personally knew that some of his statements were false; for instance, the statements, ‘that I don’t know how whisky smells.’ And that he never tasted any whisky in his life, and the court just wanted this witness to tell the truth which he knew he was not doing and for this reason had the jury retired and admonished him to tell the truth.”
If the trial court knew the witness was giving false testimony of material character, it would have been proper for him to have testified to such knowledge before the jury, but we are inclined to think the learned trial judge allowed what may have been his righteous indignation to lead him too far in this matter. The judge on the bench can not too' scrupulously refrain from the very appearance of partiality. He is for neither side in any litigation. The state has its officers to look after its interests in any case. Without bias or prejudice the judge should rule as the law commands, — blind alike to friend and foe. It is suggested in this bill of exception that the witness gave different testimony, more
Reversed and remanded..