72 S.W. 594 | Tex. Crim. App. | 1903
Appellant was charged with the theft of one pair of blacksmith tongs and one blacksmith hammer.
The second bill of exceptions complains of the action of the court refusing to permit witness Shields to testify that prosecuting witness Sanders, soon after his blacksmith shop was burned, in making a written statement to the insurance company in which he carried insurance on his blacksmith establishment and tools, in regard to the loss by fire, stated, in such representations to said company, that all his hammers, tongs, and all of his tools had been totally destroyed by fire. The State objected because the testimony was immaterial and the written statement was the best evidence. Whereupon witness Pierce, in order to lay the proper predicate, and show the written statement was lost, stated that he knew the statement was made to said insurance company, and after this prosecution was instituted wrote several letters to the insurance company at Galveston, attempting to get a copy of said statement. The letters were all returned. Then he wrote to a firm of attorneys at Galveston, asking them to locate the insurance company, and received the information that said company had dissolved, and were no longer in Galveston, but had moved to Dallas; that he went to Dallas in April, 1902, and sought to locate the insurance company, in order to secure the affidavit of Sanders, or a copy of it; that he examined throughout the city, by all the means afforded him, to locate said company or its president, but failed. It is not necessary to detail the means he used in his attempt to locate the company and its officers. The court thereupon refused to permit Shields to testify to said statement. Shields would have testified that he assisted Sanders in making the statement, and that Sanders in said statement and affidavit reported to said company that his shop and all of the tools therein, including hammers and tongs, had been totally destroyed by fire. Sanders had testified that he did not recollect whether or not he had made such statement, but if he had he was then seeking to secure money from the insurance company, but he was now testifying against appellant. The testimony was offered for the purpose of affecting the credibility of Sanders, and for the purpose of proving the value of the hammer and tongs, and the knowledge of the witness Sanders that said hammer and tongs had no value at the time he made such statement. We believe this testimony should have gone to the jury, and that the proper predicate was laid for the introduction of the testimony of Shields. Certainly it went to the credit of Sanders, whether or not it had any probative force as to the value of the hammer and tongs. *514
While the county attorney was making his opening argument to the jury, among other things, he criticised defendant while he was a witness in his own behalf, because he did not tell one word about these tongs. Counsel for defendant interrupted the county attorney, and announced to the court that he had overlooked to interrogate defendant while upon the stand in regard to the ownership and possession of the tongs, and asked the court to again allow him to put defendant on the witness stand, in order that he might explain this matter, and that if permitted to recall defendant he would explain his possession of the tongs in like manner as he had explained the possession of the hammer, and that it was the fault of counsel, and not the fault of defendant, that he had not so explained his possession while upon the stand in the first instance, and that it was necessary to the administration of justice, as well as defendant's ground of defense, that the court permit him to again take the stand under the circumstances. The court refused upon the ground that he had already been upon the stand, and the testimony had closed, and permitted the county attorney to proceed with his argument, and to further argue to the jury that defendant had failed to explain his possession of the tongs, etc. While upon the stand appellant had testified that the hammer was his, and that it had been made in the shop by himself and his brother, and would have testified, if permitted to be recalled, to the same facts in regard to the ownership and possession of the tongs. The court should have permitted the witness to be recalled. This question was before the court in Donahoe v. State, 12 Texas Crim. App., 297. It was material and important to the defense. The Donahoe case is so nearly like this we deem it unnecessary to enter into a discussion of the matter, but simply refer to it for support of this ruling.
The matter with reference to the application for continuance is not discussed, for the reason that the witness may be before the court upon another trial, and, if not, the application will be presented under different conditions.
The judgment is reversed and the cause remanded.
Reversed and remanded.