*1
75
hear
determine whether
The
had the
Court
County
relator
or not the
the
of the Peace
committing
action of
Justice
the
was
facts
to authorize
arbitrary and whether sufficient
existed
Wilkinson,
This
Ex
entered.
We a the that the of was conclusion language support altercation by angry rash and inconsiderate expression provoked facts at the time. Under such the were engaged March v. of of the Peace was unauthorized. order the Justice 107; State, Tex. Bolt 67 Tex. Crim. 551. Rep. Crim. v. App. the commission of It has been held that threats madе prevent Lane 101 Tex. Rep. an unlawful act is no offense. v. as to or not the threats It is matter of doubt grave 593. whether an unlawful attack prevent made only conditionally so, If fall the rule relator. within they watchman uрon case, laid the Lane We are prepared say down supra. the remark the conduct the officer was not sufficient to of provoke life. serious threat to take showing State depends-upon words, officer, an attack made In other if the relator fearing an unlawful attack the threat of preventing only purpose himself, his incarceration unwarranted. upon the order Because in our evidencе does not opinion support Peace, trial court made by Justice and relator ordered discharged. reversed Reversed and relator ordered discharged.
Reversed. has been The of the Commission Aрpeals foregoing opinion and ap- examined the Court Criminal Appeals Judges Court. proved by Ingram
Tim State. February 1929. 12174. Delivered Rehearing 1929. granted June *2 states the case.
The opinion Cisco, for
J. Lee Cearly appellant. Canton, A. A. for the State’s Statе. Attorney, Dawson
n robbery; punishment, LATTIMORE, Judge. —Conviction in the penitentiary. ten years robbed, iden- positively Allen, alleged
Mr. party him with guns held up men who as one of two tified appellant dollars. him about 1928, fifty from March took night number alibi, was sworn defense at located him on question who relatives of appellant and different place. another Nos. 5 and 6 will Bills are eleven bills of exception.
There an- bill No. 4 the expected that in say discussed no further than objected to a asked by appellant swer In 5 and 6 is without merit. bills Nos. set out and the bill answers to expected questions objected no and these bills manifest to such questions, not responsive plainly *3 error. that on robbery Munn swore the night alleged
State witness a he men a car in about two west toward the road saw coming was; a mile Nimrod Allen’s of west of where store that quarter was a dark and witness could not tell whether the men were night not; them, white or not no timе men he did was at recognize than one feet from Bill nearer hundred them. exceptions sets that the court under erred these facts up sustaining objection to the this witness to the effect question propounded that if that had been Buford and Tim would the witness Ingram, them. In as much have as the witness that recognized had testified he men he saw, did and the that it recognize further fact a dark and that he was not near night to tell whether enough not, it white men or to us the appears answer they would have This been court holds that conjectural. purely opinions evidencing are or that should they guesses conjectures be always rejected. State, 629; Warren 9 Texas Crim. App. v. Irvine v. 26 Texas 48; Crim. 41 Texas App. Clay Rep. 656.
The other bills the record have exception ex- carefully error amined, but has not been found in any them. The facts seem sufficient. amply affirmed.
Affirmed. MOTION FOR ON REHEARING. Allen, trial Mr.
Upon party alleged robbed, have been claimed identified and his positively brother A. (B. as the who
Ingram), committed the offense. The defense was an Allen alibi. that claimed about ten o’clock at someone night him called from his house on the pretense wanting purchase medicine; that he went to the store to wait on cus- pretended tomer, and that appellant and his brother then It robbed witness. was further that shown it was although claimed оccurred about ten o’clockat Allen did not night the officers until next morn- notify he had he ing, although could communi- telephone by cated with them and that he made no of the occur- report rence to his brother-in-law who lived across road from him. is further shown that officers made two store trips appellant’s the next the first in the day, forenoon second one about two or three o’clock the afternoon. Appеllant that he was complains restricted in unduly his cross-examination of the witness Allen and in the re-direct examination Reed, of his own witness one of the officers who examination, if investigated robbery, per- mitted, would have cast doubt on Allen’s on the testimony given and his brother as the This identifying appellant robbers. five, bills of numbers six nine. presented exception be considered Bill They may number five shows that together. Boland, Allen that about testifiеd o’clock next eight Mr. morning officers, first, one of the to witness’ store and that he told Boland got he had been him robbed and gave description robbers. He was then asked on cross-examination if he told Boland who the robbers were. At this the State point as fol- interposed objection *4 lows : it, to this conversation unless can object
“We we into and of go can’t; this course we was the next and out of the morning presence the and defendant and would not be hearing admissible.” The court seems to the have State’s the adopted view of matter the and sustained Of course the objection. State could not have chief, the conversation out its case in but it' developed making that nо means follows could not examine Allen with refer- the conversation had with the officers if it ence to would develop his at doubt'on claim the that he facts identified casting appel- the brother as robbers.'.'The lant and his to question objected was: Boland who the robbers were?” “Did tell The bill recites that you that answered he did not Allen would have give any description him until the next who robbed about day the P. M. parties two-thirty that Allen itself shows did that testify bill he The “described the of the and answer significance expected robbers” us on escaped not evasive consideration of the case. answer was original only of the of the as to whethеr Allen disclosed the identity question robbers, but that never descrip- also would have shown he gave any tion of the his store. robbers until the second visit of officers to The record further that the and discloses officers knew appellant his brother if the the robbers were officers had been told who them. no for Allen describe there would been necessity have testified that Reed (an- Bill number six discloses that Allen had back a other at Allen’s store came was officer), morning noon; that Reed was there in the second time about morning and Allen was whoever had committed robbery, apprehend him if Reed had not asked that (Allen) cross-examination asked on The court sustained to this robbery. objection about morning the same reason the State as assigned by presumably question that Allen number five. The bill shows would have shown in bill been “he was about robbed talking having that testified didn’t in that disсlose names of the conversation (before) such him.” contends that admission who robbed Appellant parties Bill the state’s case. nine tended weaken number have would Reed was on the witness stand while officеr been (having shows that if he was asked his of the during investigation called by appellant), him. Allen told witness who robbed robbery Again by reported the court cut the state’s off objection appellant sustaining he the matter еx- explore sought from investigation sustained objection amination of Allen. Upon being question form of was and Reed was asked “Did changed last mentioned At that who robbed him?” out there morning point find you not remark of should аttorney, side-bar prosecuting bill, but made, shown in the controversy precipitated from the State was sus- Objection to notice. again here necessary the bill that Reed tes- certifies would have court and tained inform that who robbed Allen did not witness morning tified that. before, of the a description driving him gave the night from the bills in of state” car. clearly appears an “out no of the had firmly opinion court was that the of Allen to his silence as to the investigate cross-examination even on Allen had a ex- .robbers. may perfectly good identity *5 the officers that the robbers were appellant for not telling planation the State could hаve elicited on re- which explanation brother and his the court was in clearly wrong but curtailing examination direct in his appellant about the matter. The rule inquiries is general very Evidence, 355, stated Underhill’s concisely Sec. follows: “The limits within which either cross-examine party may upon relevant, matters not affect strictly of the credibility evidence, exercise, is largely and a reasonable discretionary, this discretion in the duration or the method of limiting modifying cross-examination, or in immaterial admitting seemingly questions motives, tending explain and of obser- opportunities, powers vation, the recollection, or knowledge, memory or reliability good witness, faith of the be always allowed.” Trials, Ed., Also in 1, 420, on Thompson 406, Sec. Vol. Sec. page the same is announced in this principle language:
“The of the importance of full right cross-examination can As a scarcely over-estimated. test of the truthfulness accuracy, it is credibility testimony, invaluable. It clear is the of the facts, to elicit which weaken cross-examining party suppressed or the case of the qualify cross-examining party.” Paulk v. Tex. Cr. R.
See also
Reversed and remanded.