272 S.W. 474 | Tex. Crim. App. | 1925
Appellant was convicted in the district court of Potter County of possessing intoxicating liquor for purposes of sale, and his punishment fixed at two years in the penitentiary.
A prosecuting witness introduced by the State said he bought liquor on the occasion mentioned but declined to identify appellant *155
as the man from whom he bought it. He was asked by the State if he did not tell the grand jury that the party from whom he bought the liquor was Luther Hughes (appellant) and said that he did not think so. Thereafter the State introduced Mr. Beasley, a member of the grand jury which returned this indictment, and in his direct examination the State asked him whether or not the witness above referred to, when before the grand jury on the 13th of June, 1924, identified the defendant Luther Hughes as being the man from whom he bought the whiskey. Appellant objected to this for various reasons, among others, that the State could not impeach its own witness because of the fact that he simply did not identify the appellant as the guilty party. This bill of exceptions is qualified with the statement that the district attorney claimed surprise because the witness referred to declined to positively identify appellant, and that said district attorney laid a sufficient predicate by asking appellant if he did not positively identify defendant when before the grand jury, and that witness having denied such identification before the grand jury, the State should be permitted by the court to bring the grand jury foreman to testify for the purpose of impeaching said State witness. The learned trial judge further explains the bill by saying that in his charge to the jury he restricted the testimony of said foreman of the grand jury to impeachment purposes. The question then is, was the case one in which the State might impeach its own witness. Many authorities will be found collated in Sec. 164 of Mr. Branch's Annotated P. C. sustaining the proposition that it is error to permit the State to impeach her own witness where such witness merely fails to remember, or refuses to testify, or fails to make out the State's case. It is stated that a mere failure to make proof is no ground for impeaching such witness. Many cases are cited explaining what is meant by failure to make proof. Scott v. State, 20 S.W. Rep. 519; Bailey v. State,
Reversed and remanded.