*1 ! Appellant, Eugene LUDWIG,
Raymond Texas, Appellee.
The STATE
No. 28236. Appeals Texas. of Criminal
Court
Oct. 1956. Rehearing Dec.
On Motion
167 ap- place him at about same on the same Jones, Austin, for Jones, Herring & country lane. is It was obvious pellant. compelling evidence of probative force Atty., Ma- Proctor, Francis Dist. Les J. sufficient, in judgment our together Atty., B. Leon Jr., loney, Asst. Dist. evidence, with the other to authorize Austin, for Douglas, Atty., State’s jury ap- return finding to a verdict that the State. pellant participated in the instant assault. gone Knox that he to the testified had Judge. MORRISON, Presiding he country lane night about which com- company Lud- a charged that Otto “woman indictment testified with y;as panion.” being Knox cross- afore- When malice appellant, with wig and examined, he name his com- a shot- to with asked Henry Roach thought, shot one panion evening; answered that he murder him. gun, intent to with so, appellant’s he rather not do would evidence, At the close wit- counsel moved instruct the to under case to court submitted the This, ness declined to answer. the court of assault authorizing charge thereby to serious error. do and fell into without murder with and with intent to which; is obvious from that has assault, aggravated and of malice very said that this -was finding Otto Lud- returned a verdict material to of 'the State’s one wig to murder guilty of assault with intent strongest links in its chain of.circumstances. malice, of three punishment with without witness,- She not called as a and when separate years by penitentiary, in the appellant identity sought to learn-her appellant guilty aggravat- of verdict found ruling to unable do so because of the punishment ed and assessed his assault If her the court. had’been jail. months nine appellant, known could-have inter- thought of her calling viewed her with the Court, to this appealed Both defendants she as a witness. If had denied that request that Ludwig’s but thereafter about which he Knox granted, and appeal be dismissed the men who testified or described threaten- Raymond Eugene appeal preclude ed manner as to- them such a us. is before alone appellant them, one of being the.effect of telling. such would have been disposition of this In view of our us, the facts recitation of here before cause apparent The error here shown so as necessary other than to deemed will be require authority. hardly the citation appellant’s father was observe being 10, by witnesses Bill Rights identified Article § committed, but Constitution, the offense was time Texas Vernon’s Ann. our by St., not identified appellant himself was an accused guarantees right persons two who by against as one confronted the witnesses him. upon lonely in the assault participated right to be confronted the wit- case was then country The State’s lane. right with it the nesses carries to- cross- As evidence. circumstantial based 145, p. 1142; them. examine Tex.Jur. appellant show that circumstance State, Tex.App. 215; Bell v. Weaver assault, instant the State participated State, 129 Knox, who testified the witness tendered prior to the time offense some that at in refusing of the court action in- indictment charged identified, .witness to answer. the father, struct whom both.of abridgement *of ap* an undue up- constituted a similar assault commit threatened Having accepted and filed the bill as pellant’s of cross-examination qualified, quali- re- is bound such matter and was material witness on a fication. *3 versible error. trial, reversing in in injured par We error the
Upon the were another assigned ex error permitted on direct conviction the in said ty by bill testimony exception, and we now hold that amination to bolster own pic reversible in concerning examination of error is not shown the re hearsay the require fusal of the trial court the tures. witness divulge Knox to before the out, pointed judgment the For the errors companion. the name of his woman remanded. is reversed and the cause In this connection we observe that for Rehearing Motion On State’s aught may record shows well identity known the or learned of her before the trial WOODLEY, Judge. concluded. The record does not establish challenges the correctness of The state the contrary. reversing the opinion Assume judge the trial directs a Nash v.
calls to the case of our attention witness to name his woman State, 689. he refuses. this entitle Would the ac- acquittal cused to reversal of or convic- arson A wit- Nash was an case. v. State tion? We think not. ness that he had for the State testified on home girl witness, Henry prosecuting The explosion alone he heard Roach, a year Negro old member of away. Nash run burned house saw Force, the United States Air and his 17 compel the refused to trial court year companion, old girl high school girl divulge the name Austin, student of driving were out and this court found no had been with of March error. About 9:30 P.M. Roach and his com- here made The contentions were panion turned near dead end of the and were overruled. Nash parked Tannehill Lane car the west vicinity side of the road also called to the Attention gate of a in the east fence line. excep the bill of qualification to appeared Two men at the fence on the of the refusal of his complaining road, side west of the gun each with a instruct motion to have and a flashlight, one whom was Otto question “Who was answer Ludwig came who under fence into you?”, the witness Knox with the woman shotgun the lane shortly with there- per “I would rather not having answered striking after assaulted Roach him with * * * sonally ”. gun. the butt end propound- reads: “In qualification The second man rifle which cor- George the witness question to ing the responded appearance with a 30-30 rifle Exception, Bill forth Knox set Ludwig found in the thereafter home here- any materiality not show defense attempted inafter referred to. He to strike issue the case in any relevancy to or shoulder Ludwig. Roach over the of Otto did not connection attempting materiality away, As to drive rele- Roach show offer to smaller, shot, slightly “BB” size came vancy.” Without reviewing his side through the window on witnesses, evidence, car, away though various one side tore some of which eye, conflicting, deprived of an authorized the him find of his face and appellant and his father were through Ludwig the windshield and some went greatly The two concerned about the right side. use of the car on the dead vicinity end road in disappeared. men home and the dumping of trash and debris scene of The closest house to the along the road and were offended shooting residence persons lane, conduct of parking in the occupied appellant, was that of who lane *4 and on occasions had threatened to as- and children. with his wife house sault and kill and had assaulted some one father, made also Ludwig, appellant’s Otto or persons. more such Also there is evi- his home. dence to the appellant effect that was seen along the lane with shotgun, though he after the of two men made Shoe tracks denied as did Otto owned Ludwig that night were rain fell earlier that which or possessed gun. such a resi- Ludwig from the found which led jury testimony having accepted finally and dence across the road person that the possession who had in his compan- Ludwig and his fence where Otto a shotgun was Ludwig, the evidence ion were first seen. sustains finding appellant that leading from tracks found Similar were companion his and acted in the with him near vicinity gate where the shooting. the east of the parked car lane, Ludwig to the residence. Appellant position inis com no plain that the evidence shows assault an No adult male other than Otto with intent to murder. an assault premises and appellant lived deadly weapon serious night none came there inflicted, bodily injury prior arrival of- investigating to the was authorized charge convict ficers. assault, aggravated the lesser offense. no other tracks Diligent search revealed Exception 1 complains Bill of No. leading coming from other in the area appellant’s overruling motion parked car was so The Roach directions. requesting the court to instruct the say men did able to that the that he was prosecut disregard testimony road, there were not come down Roach, ing Henry witness on re-direct ex past the dead end. no tracks amination, which was to the effect that pictures examined a number of had were Neither Roach nor pictures which included identify appellant as the positively able to father, and had and his identified Otto neither of saw who second man and them Ludwig. appel- that shot. Both testified fired the description of the second lant answered the pictures testimony related to shown descrip- all man, fits testifying Roach “he in the absence of Roach positively I iden- than could other father, hearsay. claimed to be * * His face and tify him face *. objection was made when this testi- No companion, . things.” His features and man, mony was offered and admitted and the appellant out as the pointing after was cross-examined rather thor- get see his she “did testified that pictures. regard to the He had oughly enough to face; him clear not see other witnesses excused and had been say.” present exclude was The woman in the motion to before examined quote everything saw that Knox I saw. made. opinion: from that pites authorities Appellant, a number qualifies “The to the with- the bill though admitted to the effect incompetent effect con- that it was not shown or hearsay objection, out by appellant’s tended that the probative counsel testimony given no should be Bridges with whom the witness force or effect. had been that object by his failure to Appellant^ fire or about anything knew whatever so, waived opportunity to do he had it, or was with the witness admission error * * the time he saw the fire *. State, Tex.Cr. Gephart v. mentioned. record shows the said State, 612; v. Renfro R. Bridges given testified and Curry 772; 400, 242 S.W.2d person name of him who was with State, Tex.Cr.App., 276 S.W.2d explosion time that heard the *5 and saw the run from the Court to for is occasion this There no. house.” 51 S.W.2d [121 not the whether or determine 692.] incompetent, for wholly hearsay and was upon testi- depends such proof of no issue example principle cite an law I of the of take it upon to not called mony. We are “A” before this Court in this testifies case. It weighing the evidence. account into walking friend, he wit- while the ver- entirely disregarded, and may be gives very damag- nessed a homicide and sustained. dict testimony against ing the accused. Counsel “ says, ‘A’, for the accused not believe doI error, Finding:no the State’s reversible your testimony. I your want out to seek order rehearing granted; the for is motion you friend and if telling see are the truth. is aside and reversing set “No, “A” I says, What is his name?” now judgment is affirmed. upon will not tell you.” Counsel calls help, as case, court he did this MORRISON, Presiding Judge (dissent- court refuses the accused that aid and ing)- deprives right prove, thus him his if of to could, “A” he giving that false testi- of evidence that certain rules There are mony appellate against him. No that court in the Constitution foundation find their support I have ever heard would of such a innate soundness to little but their and need verdict, yet my exactly that is what been said has often them. It recommend doing brethren are here. That criti- make bad law. facts that bad believe, justice, I be leveled cism could qualification gives court’s of the bill my opinion herein. of brethren at the my They brethren small comfort. seem to is my brethren ap- cited Nash case think that it incumbent support authority pellant point and will not to out to the court ma- not is holding teriality here. au- present missing witness’ Her name. they very presence demonstrated, The woman Nash thority cite. scene burning necessity to explanation, not without materiality supported relevancy have contradicted testimony. her could certainly part of the as She Bridges’ identification as scene fleeing person whom he saw from as Knox. She heard much being the conversa- merely parties building. She was reason and saw the actions of happened passing present. that all Whatever said or done Bridges transpired presence, Not in the case at bar. in her did. so and it he concerned My deciding merely as it brethren are not her well and related here; important court any case before from us far more qualification Knox. No precedent is the which shall which set fact that could alter destroy determine be tried how future shall' nor cases at the time us., Constitution, may many accused, affect the lives of under the be, her may is might guilty call However so this accused learn her name that Legislature entitled to a with the Not accordance even as a witness. Certainly, Constitution. destroy right. such could might embarrass Knox fact it I conse-. thought shudder at the alter name give her could woman to quences opinion my of this brethren than no more the Constitution relentlessly shall labor to overrule it. accomplish end. qualification such could required amend people my vote of the is respectfully A I enter dissent. Constitution, my have yet brethren prevent embar- so in order to here done up- Knox or woman and
rassment in a mistake
hold a trial part I want no
never made. proceedings.
of such name nowhere discloses the record PELHAM, Appellant, Joel Dean nothing witness, there missing *6 my conclusion that support brethren’s “may well have known Texas, Appellee. The STATE of this woman.” No. 28695. pose My question not raised a brethren Appeals Court Criminal Texas. They acquittal if an ask this record. Feb. follow if a witness declines reversal should testify though court instructs even bar
him to do so. witness, and such to so instruct
declined
ruling bring about reversal should uphold
this conviction. We should ruling
trial court in a the effect of which deprive the of his consti-
was to accused to be confronted
tutional we do against him. What should
witnesses state of facts does not concern
in another it, today, I do observe
me but as I see put citizen State liberty unless witnesses prosecution tell support such who will told and the whole truth. Knox
the truth happened
only half of what-he claims all, tell his refusal to in which
night, and supported by ruling,
he was
deprived accused of proving had of that the half which
earth just This case told was untrue.
simple as that.