26 S.W. 194 | Tex. Crim. App. | 1894
Lead Opinion
Appellant, Thompson, and Moore were jointly indicted for the crime of robbery. Thompson was tried and *286 acquitted. While testifying in behalf of appellant this fact was sought to be proved by this witness, but, on objection by the State, was rejected. This was error. His complicity in the robbery was kept prominently before the jury throughout the trial. This tended, clearly, to affect and impair the force of his testimony. Proof of his acquittal would have tended to place him in a much more favorable light before the jury, and it was of the greatest importance to appellant that this should be so. When the credibility and standing of a witness have been attacked by evidence that he had been charged with an infamous crime, it certainly is admissible to prove his acquittal of that charge.
Appellant introduced portions of the testimony of Dick, the party charged to have been robbed, taken before the examining court, for the purpose of contradicting or impeaching him. The State was permitted to introduce the whole of his evidence taken on said trial. This testimony is not set out in the bill of exceptions, and it is therefore impossible for us to tell whether it was or was not erroneously admitted. Wilson's Crim. Stats., secs. 2368, 2516. If this testimony was necessary to explain or throw light upon that portion of the evidence used to discredit the witness, it was clearly admissible.
For the purpose of contradicting the witness Goode, the State introduced his testimony taken in the same examining court. Objections were based upon Goode's denial of the correctness of the record offered, and his statement that it was false; that he had not read it before signing it; and that, had it been read to him, he would have declined to sign it. This testimony was, it seems, totally at variance with his evidence on the final trial. For the purpose for which it was used, this testimony was correctly admitted.
On his cross-examination, appellant was made to answer that he had been previously arrested for burglary, robbery, and theft. Exceptions were reserved. A defendant may testify in his own behalf, and this though he may remain unpardoned for conviction of an infamous crime. Williams v. The, 28 Texas Crim. App., 301; Shannon v. The State, 28 Texas Crim. App., 474; Newman v. The People, 63 Barb., 630; Morgan v. The State,
The decisions are practically harmonious to the effect that the defendant as a witness occupies the same position as any other witness; is liable to be cross-examined as to any matter pertinent to the issues of the trial; may be contradicted, impeached, and sustained as any other witness, and is subject to the same tests. See Quintana v. The State, supra, for collated authorities. This court after mature deliberation held, that the credibility of a witness can be attacked by evidence that he has been charged with the commission of an infamous offense, or that he has been arrested for a crime involving legal and moral turpitude. Carroll v. The State,
The court should have omitted the charge given in relation to the use of deadly weapons. This means of committing the robbery was not averred.
The judgment is reversed and the cause remanded.
Reversed and remanded.
HURT, Presiding Judge, concurs.
Dissenting Opinion
While I agree to the disposition of the cam upon the other grounds, I am unable to concur with the majority of the court in holding, that when the defendant takes the stand in his *289 own behalf he thereby subjects himself to cross-examination to the same extent and in the same manner as any other witness. I readily concede he may be cross-examined as to all matters connected with the offense charged, or as to crimes contemporaneous or connected by system with the one under investigation; but I deny the right of the State to go, under claim of attacking his credibility, into the witness' past life, and bring before the jury charges and convictions having no relation to, nor connection with, the present charge. The distinguishing feature of the common law, from which our Criminal Code is derived, was its great solicitude lest the innocent should suffer. Not only was the specific accusation to be distinctly charged, and the defendant confronted with his accusers, but the testimony was required to be weighed by an unprejudiced and impartial jury, charged to regard him as an innocent man until the crime charged was proven beyond a reasonable doubt. Yet to admit testimony of the character above mentioned is to strip the defendant of the presumption of innocence the law has heretofore thrown about him, and renders his conviction a certainty in cases where doubt might otherwise exist. It is beyond the power of a trial judge to admit such testimony, and then control its effect on the minds of the jury by limiting it simply to impeachment. I have no doubt as to the correctness of the rule which permits a witness testifying for or against another person charged with crime to be examined as to his past life, so far as it may throw light on his present character for truth. The jury should know his surroundings and connections, to properly weigh his testimony. Carroll's case, 32 Tex.Crim. Rep.. There is, however, a manifest difference, as to result, between the ordinary witness and the defendant witness. The ordinary witness has but his credibility at stake. Proof of his past life can alone affect that. But the defendant witness has at stake not only his credibility but his liberty or life, and the testimony, under this rule of the court, may not only break down his credibility but take away his life also. Nor does it follow, if such testimony is not admitted, that the presumption of truthfulness will surround the accused. On the contrary, there is no possibility of the jury forgetting that defendant is profoundly interested in the cause, with every incentive to conceal the truth if it is against himself; and defendant necessarily labors under a disadvantage that can attend no other witness. For these reasons, I do not think the rule in the Carroll case should be extended to defendant's testifying. *290