*1 'd) (if (Tex.Civ.App. ref writ — Galveston powers probate are inade court quate grant full the claim relief to which entitled, jurisdic court has
ant district full over that claim in to afford tion order
relief).
Accordingly, judgment would affirm appeals. the court of ENOCH, JJ., join
HIGHTOWER and Charlton, only, dissenting opinion. appeal B. Brian Michael Houston, Wice, appellant. C. for Holmes, Jr., Atty., B. and Kar- John Dist. Campbell, en A. Clark and Joan Asst. Dist. Houston, Huttash, Attys., Robert State’s Horn, Atty., Jeffery Atty., Van Asst. State’s Austin, for the State.
Clayton MADDUX, Appellant, Allen OPINION ON APPELLANT’S PETITION REVIEW FOR DISCRETIONARY Texas, Appellee.
The STATE MALONEY, Judge. No. 875-92. A convicted of murder and (30) im punishment thirty years assessed Texas, Appeals of Court of Criminal § 19.02. prisonment. Tex.Penal Code Ann. En Banc. published partially opinion, In a the First justice June 1993. one Appeals affirmed with dissenting. Maddux v. Rehearing Denied Oct. 1992). (Tex.App We Dist.] [1st . —Houston discretionary petition granted appellant’s for holding in to determine review whether (Tex.Crim. Nunfio applicable nontestifying wit App.1991) is victims.1 We hold nesses such deceased that it is. examination,
During the voir dire judge informed venire members that range applicable punishment was a probation to a years minimum of five $10,000 imprisonment and a maximum of life unsuccessfully at Defense fine. they could con tempted to ask the venire probation a murder case where the sider was a deceased child: then, Now we’re not [Defense Counsel]: talking any particular case. It about appel- a new trial on granted will reverse and remand for review to determine 1. We also review, analysis ground we will not address appeals first lant’s the court of erred in admissibility we issue. Because the extraneous offenses of extraneous offenses.
591 race than the defen a different improper But in a who was of to do that. would dant) Hernandez v. 508 S.W.2d a mur- hypothetical case where there was (trial in died, (Tex.Crim.App.1974) court erred a had how 853 der conviction and child inquire refusing allow defense counsel many you still be able to consider would who in favor of a witness potential about bias probation? officer). police also a was object im- being I as [Prosecutor]: proper— Here, attempted to Appeals the Court Sustained, committing
THE COURT: distinguish Nunfio, as well as Abron specific jury to facts. that in each The cotut reasoned Hernandez. sought to the defense counsel of those cases hypothetical In a sit- [Defense Counsel]: complainant regarding a potential elicit bias assuming that fact and that fact uation a witness: who was also alone, same, everything else was the only a child fact that’s different is that aggra- present case had involved If the died, many still be able how child, or some assault on a vated sexual years proba- to consider as little as five complain- in which the child other offense tion? witness, de- a then ant was entitled to fense counsel would been object being an im- I as
[Prosecutor]: concerning question the venire members question, asking jury to commit proper against the child witness. specific in bias for or themselves to facts a case.
THE COURT: Sustained. Maddux, (emphasis in at 515 825 S.W.2d dissenting noted original). Justice O’Connor I’d like for the rec- [Defense Counsel]: like that: ord to reflect would to ask juror. every each majori- [n]othing supports in Nunfio ruling THE COURT: It’s —the stands. ty’s holding that the nun’s role as witness (rather victim) her role as a was the approxi- The deceased in this case was majority’s analysis, a issue. Under mately years two and one-half old. The may question the venire about defendant Appeals First Court of held that person potential against bias for or prevent- court did not abuse its in discretion witness, but not about the who will be ing asking defense counsel the venire against person for or who venire’s bias questions regarding
members a victim’s sta- was the victim. Appellant argues tus as a child. (O’Connor, J., proper victim’s status as a child is a area of dissenting). at 517 just inquiry questions regarding as the vic- O’Connor; nothing agree with Justice We proper a nun in tim’s status as were Nunfio. distinguishes in between victims who Nunfio may prevented testify those who do not. While it the trial court de Nunfio police officer’s status as a inquiring fense counsel from be true that the Hernandez, significant in impartial hypo fair in a venire could be witness complainant’s as a victim was the con- aggravated thetical sexual assault where the status trolling factor in both Abron and victim was a nun. The victim testified Nunfio. Indeed, proper in and a trial that “she was Roman Catholic Nunfio potential “sought to determine ‘member of Ursuline Order which is a because' [the] in religious prejudice favor of the victim congregation of women the Cath bias ” Nunfio, Nunfio, at 488. virtue of her vocation.” olic Church.’ added). Similarly, (emphasis proper at 484 This Court held (Tex. sought to be asked in this case was citing Abron v. (trial refusing because it to elicit Crim.App.1975) court erred the deceased’s status as inquire about favor of to allow defense counsel credibility complainant as rape child.2 The potential racial bias towards victim felony) any prior complete inability convicted of to consid not been 2. A veniremember’s (including proba unfit for service. range punishment render the veniremember er full 35.16(b)(3) art. the defendant has tion in a murder case when Crim.Proc.Ann. Tex.Code here; (1989); merely is not witness at issue we are White v. L.Ed.2d reaffirming holding that de- (Tex.Crim.App.1981), Nunfio denied, fense is entitled to discover a venire- 456 U.S. complainant’s bias in (1982); member’s favor L.Ed.2d 457 Williams v. status, e.g., Nunfio, a nun or in this (Tex.Crim.App.1972); Saun *3 case, as a child. ders, 780 S.W.2d question The that the argues State hold that the court abused We impermissible attempt by defense counsel prevented its when it defense discretion particular commit venire to a sentence asking question. The counsel from his denial given particular facts.3 Saunders v. a proper question during voir dire exami (Tex.App. Corpus 780 S.W.2d — error; always nation it is not is reversible 1989), grounds, on other Christi rev’d subject analysis to a harm under Tex. (Tex.Crim.App.1992). dis We R.App.P. 81(b)(2). Nunfio, agree. Accordingly, judgment we 485. reverse the Saunders, In had previously the trial court Appeals remand this Court age informed venire of the victim’s when cause trial court trial. for a new attempted to ask defense counsel the venire particular give that de- could J., BAIRD, participating. not probation though particu- even fendant that old lar victim a five month child. The Justice, MILLER, concurring. Appeals Thirteenth Court of held that Judge agree Campbell’s I anal- While question attempt improper was an to commit majority ysis today’s opinion should not given specific to a verdict specific the venire abrogate the seeks to be read to rule which Here, facts. the venire was not aware of the attorneys committing prospec- prevent age deceased’s or even deceased verdict, jurors tive to a and while child, not a defense counsel did mention the must, analysis necessarily, it seems that case, not specifically facts of this and he did basis, proceed case-by-case sepa- on a write refer to or to deceased. rately emphasize that what little amount emphasize, Judge Campbell as does We guidance provided that has been concurring are opinion, his that we not in peremptory analysis area of strike should be standing way abrogating long pro rule explicated aid practitioners, in order to committing hibiting counsel from the venire- law more extensive also that the should allow given particular members to a verdict certain it now questioning than does. See, e.g., Allridge v. facts. concept The allowing a defendant’s (Tex.Crim.App.1988), 162-64 de nied, effectively exer intelligently 489 U.S. 103 counsel to (c)(2). today years probation five in this case” would be We do decide whether the not here, specific question the venire verdict to be asked if answered to commit facts; whereas, negatively, grounds given question specific have been sufficient resem- case, challenge bling you cause. That is not hypothetical for for assess “in a could However, court appel-
before us. should probation” proper. Apparently, would be opportunity to dis allowed defense counsel significant difference be- lant’s counsel found bias in the veniremembers cover phrasing "would in terms of tween intelligently might per he order that exercise his you." being proper. you" The and "could latter emptory challenges. disagree. We argument, post- its The waived but in State Prosecuting Attorney, through 3. The State has downplays a distinction. submission brief such post-submission responding filed a brief also Obviously, magic are no words there during argument oral this raised before commitment; instance, ques- amount to a for Judge January Campbell consider," you counsel, phrased tions as either "could you what "Can take asked you "would do consider" ordinarily that solicits Judge pointed As out commit the venire. Clinton something it into else commitment and turn during argument, a commit- "to consider” is not making question?” Appel- just hypothetical it a supposed to consider affirmatively, ment responded and then lant’s range punishment. applicable that a such as “would assess stated challenges. challenges great Smith peremptory is one cise (Tex.Crim.App.1974). the Texas
importance under
Constitution.1 826
challenges for
mandated list of
Unlike the
Smith,
the defen-
trial court refused
35.16 of the Texas
found
article
cause
twelve
request
dant’s
Procedure, practically no
Code of Criminal
verdict,
whether,
following
guilty
seeking to
provided for counsel
instruction is
could,
individually, “consider
each
assert,
fruitfully
the use of
via
year probated sentence.”
granting a two
strikes,
rights.
a client’s
Tex.Code Crim.
Cf.
“[sjince question
apparent
Harm there was
(Vernon supp.1992);
art. 35.16
Proc.Ann.
challenge
grounds for a
attempting to elicit
and Butler v.
necessarily
eliciting
also
for cause is
(Article
(Tex.Crim.App.1992)
35.16 is a com
...,
challenges
‘grounds’
for
cause).
challenges
few
plete list of
With
*4
any proper
to
preventing
harm in
answers
permitted
question
exceptions, counsel is
to
inability
intelligently make
to
is
any
venirepersons
virtually
on
area which
(cit-
challenges.” Id.
peremptory
use of the
peremptory
intelligent
in the
use of
will aid
State,
608, 253
ing
v.
94 Tex.Crim.
Meador
long
consid
challenges, as
as the trial court
State,
462
Ortega
v.
297
S.W.
“A
is
question proper.
ers the
Thus,
(Tex.Crim.App.1970)).
296
S.W.2d
juror’s
is to
proper
purpose
discover
interrogation to
permissible areas of
“[t]he
applicable
the case.”
on an issue
to
views
challenges
peremptory
determine the use of
(Tex.
State,
117, 121
v.
837 S.W.2d
McCarter
unnecessarily limit-
not to be
are broad and
Crim.App.1992) (quoting
McKay,
Ex Parte
ed.” Id.
478,
(Tex.Crim.App.1990)
819 S.W.2d
482
State,
(plurality)
citing
v.
808
Nunfio
Likewise,
presumed where the
harm is
482,
(Tex.Crim.App.1991)); Ship
S.W.2d
484
positing
ques
prevented
is
defendant
State,
(Tex.Crim.
604,
ley v.
790 S.W.2d
608
“during the indi
tion to the
venire or
whole
146,
State,
Allridge
App.1990);
v.
762 S.W.2d
separate venireman
vidual voir dire of twelve
State,
(Tex.Crim.App.1988);
v.
703
163
Smith
State,
675, 690
Gardner v.
[sic].”
641,
(Tex.Crim.App.1985).
644
denied, 484
(Tex.Crim.App.1987),
n.
cert.
9
proper
trial court must not restrict
“[t]he
L.Ed.2d 206
108 S.Ct.
98
U.S.
juror’s
questions which seek to discover
posed to a
But where the
is
applicable
views on an issue
to the case.” Id.
venire, harm
single venireperson
special
on a
State,
(citing Boyd
at 121-22
v.
occur unless the defendant uses
will not
(trial
(Tex.Crim.App.1991)
judge
as a result of the disal
peremptory strike
may impose reasonable time limits on voir
question,
peremp
all allotted
lowed
exhausts
Texas,
dire),
denied,
Boyd v.
sub. nom.
dire,
tory challenges in the course of voir
— U.S.-,
L.Ed.2d
challenges
requests
peremptory
additional
(1991));
State,
Woolridge
but
v.
cf.
key question
Again, the
and is denied.
Id.
(im
(Tex.Crim.App.1992)
905-06
query
or not the
to be asked is whether
judge
impose restrictions
for trial
to
case.
on
area associated with the
touches
an
possibility
the other
based on the mere
uniqueness of each case
Despite the
proper question might lengthen the voir
wise
dire,
pro-
patterns regarding the
voir
some
Generally,
process).2
a trial court re
dire
emerged. For in-
priety
questions have
proper ques
versibly
when it denies a
errs
stance,
majority opinion and
as both the
tion
the denial interferes with a de
clear, it
make
Judge Campbell’s concurrence
intelligent exercise of
fendant’s
(Tex.Crim.
right
questions
panel
to ask
members is
Tex.Crim.
1. The
I,
(Article
right
to counsel and is of consti
10 of the Texas
App.1959)
included in
Section
magnitude
in this State. Graham
guarantee
right
tutional
State,
en
to counsel
Constitution
(cit
(Tex.Crim.App.1978)
Ironically, appellant’s at- ence on in Reich v. State (Tex.Crim.App.1979) the venire- torney that several of believed (On Submission), granted & J. Original of the Ku Klux Klan members were members vacated, panel on whether 453 U.S. (1981). However, such a deci member, pur- but not for the L.Ed.2d 988 anyone was will, large part naturally, depend revealing 94 Tex.Crim. sion pose of race bias. necessary to a determination The attor- the facts 251 S.W. “that, competency. accord- ney explained to the trial court information, many criminal ing to his spectrum, opposite end On county dis- pending in Wood had been cases issue, may only punishment is at where organization of that cussed the members pro- plumb depths proper also lodge in their speeches had been made punish- jurors’ feelings on various spective upon in criminal insisting rooms convictions Powell v. ment theories. stated, eases, that, he for the reasons Powell, (Tex.Crim.App.1982). prejudice had been created feared that explained that there were defense against against him and his case....” Id. major thought on the issue schools of three request, The trial court refused the but (2) (1) rehabilitation, punish- punishment: appeal in- “[t]he reversed on ment, at 169. He deterrence. certainly which was called for was formation venireperson in- attempted to ask each then enabled to intel- calculated closely dividually philosophy most which challenges.” ligently his exercise Upon Id. at 170. matched their own. the case not indicate whether Id. As does per- objection, judge did not State’s appellant belonged ethnic inquiries type, mit of that and we held religious group, it follows that it was disallowing it prejudgment of the case bias or *6 to merit of discretion sufficient abuse prompted
which reversal. Id. reversal. Reviewing police ease in four offi- a which figure prominently in cers were to the State’s Questions Improper Peremptory burglary,
prosecution of a
this Court found
above,
over the
As mentioned
discretion
in the trial
refusal to
reversible error
court’s
questioning must be
propriety of voir dire
question seeking
in favor of law
allow
bias
court and will be reviewed
left with the trial
enforcement. Trevino v.
However,
case-by-case
some ar-
on a
basis.
(Tex.Crim.App.1978). Trevino’s
expressly made off-limits.
eas have been
prospective
counsel
ask
“merely because
is a
[a witness]
whether
appellant’s counsel at-
In Caesar v.
officer,
you
you
pay
police
do
think
would
jurors
potential
on
tempted
weight
testimony
some-
give more
to his
juror.
would act as
related area: how
Here,
policeman?”
(1938).
one who was not
Id.
The
(DWI),
(in
(1935)
refused to allow coun
the trial court
defendant
trial of african-american
present
do
en
woman,
“[a]t
sel to ask whether
no error
robbery
a Caucasian
athletics, particularly
form of
gage
whether, were the
question to disallow
State, 172 Tex.
bowling?” Dworaczyk v.
reversed,
defendant
jurors would want
roles
Fail
Crim.
Plair,
case);
279 S.W.
on their
to sit
cf.
such
perceive
possible
what
relevance
ing to
However,
proper purposes for the
two
question could have to
an obtuse
immediately spring to
disallowed
trial counsel did not indicate
given that
fact,
(1)
was,
mind,
seek
trial counsel
viz:
respond
have
how the
towards the
bias directed
ing to uncover
ed,
ques
refused to allow
the trial court
defendant,
Gradney
doing,
judge
the trial
did not
Id.
In so
tion.
racial
additionally seeking
possible
out
without
his discretion.
abuse
surrounding
given the factors
Perhaps
bias.
part
activity was
indicating that an
facts
provided
even
could
those cases counsel
case, question of this nature
the facts of
questions. But
those
explanations for
it is
proper under the record because
asking a
purpose for
legitimate
only one
jurors,
selection of
wholly
irrelevant
therefore,
and,
necessary
question is
limiting its
not err in
trial court does
and the
inconsis
cases were
judges’ actions in those
proffer.3
per
effective exercise
tent with counsel’s
Nonetheless,
past
questions which
some
questions should have
The
emptory strikes.
improper should not
considered
years were
permitted.
been
approach
our modern
considered under
be so
ago,
ap
eighty years
this Court
Almost
instance,
Carpenter
For
to the law.
*7
court’s disallowance
proved of a trial
in
a murder case
reviewed
this Court
explore
designed to
hypothetical
fa
the defendant’s
the deceased was
which
against
rather
bias
against a crime
bias
ther-in-law,
was a result of
and the murder
State, 75 Tex.Crim.
Merkel v.
a defendant.
397, 87
family argument.
129 Tex.Crim.
(1914). There,
year
a 16
551, 171
S.W.
(1935) (On
for Rehear
Motion
Id.,
man.
by
year old
girl
raped
a 23
old
was
allowed, in that
not
Appellant was
ing).
attorney,
Appellant’s
at 738-40.
S.W.
you were on
question: “[i]f
to ask the
however,
[the
attempted to ask “whether
had
murder,
you be
of
for the offense
trial
prejudice
jurors]
have bias or
had the
by a
who
willing to be tried
having sexual
year
man
a 35
old
against
now
you as
of mind toward
attitude
same
there, though
as was disallowed
proposi
such
the
to stand for
this case seems
3. While
might
appeared
eyes,
have
question can be disal
useful in counsel's
that an "irrelevant”
tion
lowed,
likely
lengthen
that the trial
actuality
designed solely
the
in
it is
to
pointless and
dire,
managing
voir
Conceivably,
motivation was
court’s
process of
selection.
the
know because
any
we will never
in
event
some
Dworaczyk
attempting to uncover
was
presented apart
question is
disallowed
post.
by
Or
See fn.
shared
bowlers.
attitude
meaningful
independent of
those allowed
a bowler and counsel
perhaps
the defendant
ante,
allowed
trial court is
analysis.
noted
the
As
interest.
seeking jurors with a common
time restrictions
place some reasonable
wanting to ask
in
the initial motivation
Whatever
118; Wool
Boyd,
at
Dworaczyk sug
dire.
voir
ridge,
cf.
that,
clear
unless
question, it should be
is
at 905-06.
utility,
absolutely
it would
perceives
no
court
limiting questioning
problem with
gestive
the
of
asking.
permit
prudent to
often
dire, a
of the full voir
panel. In the context
the
Boyd at
Con-
year
girl[,]”
things to be obscene.”
a 16 or 17
old
intercourse with
allowed, it
were
sidering
questions
found no error because
imagine how counsel could
purpose
of show
difficult
question was “not for
way
any meaningful
in
stated,
against
uncovered attitudes
any
prejudice
ing, as
that certain mem-
try
in
it is conceivable
they
not
him
appellant, nor that
could
have been
would never
to
bers of the venire
impartially, but were directed
this case
that,
blush
while at first
bias,
exposed to material
against
etc.
the crime-”
wards their
given
not obscene
shocking, is nonetheless
trial,
attorney was
appellant’s
In a DWI
community
See
contemporary
standards.
prospective juror ques
to ask a
not allowed
California, 413 U.S.
generally, Miller v.
drinking
relating
personal
habits.
tions
2614-15,
24-25,
37 L.Ed.2d
(Tex.
Densmore
(1973).
such,
disposition in
As
believe
record,
Crim.App.1975). Lacking a formal
appellant
Boyd
permitting
“
erred
Exception
appellant’s Bill of
stated that
‘the
separate, by effective use of
permit interrogation of the
Court did
strikes,
prurient
those inclined toward
any
opposition they might
regarding
moral
preferring
pure.
from those
drinking
consumption
or the
have to
contrast,
court
in
a trial
type
questions relating to
White
alcohol and the
at
counsel’s
drinking
disallowed
personal
habits of individual
”
“if he would
jurors.’
tempting
to ask a veniremember
Id. The Court considered
dis
penalty of confine
ques
be unable to consider the
questions
allowed
mere restatements
allowed,
proved that the defen
already
to find ment for life if it were
tions
but went on
store, ‘attempted to
it or
sufficiently
into a
rob
that even if the
were
dant went
distinct,
it,’
pistol
head
aimed a
at a woman’s
that because
did not relate
robbed
her,
beliefs,”
killing
in
“personal
range and shot
her
prejudices or moral
no at short
stantly, and if the woman’s husband testified
abuse of discretion occurred.
Id. Forestall
(Tex.Crim.App.1981),
basis, however,
ing questioning on that
to that.” 629 S.W.2d
denied,
not,
my opinion,
Drinking
correct.
was to
t.
U.S.
cer
As the
presented,
fact in the case
therefore
jority opinion of the Court. ques- showing no that the appellant “made proper.” Id. It is tion he to ask was CAMPBELL, Justice, concurring. jurors to asking prospective clear to me that always cause them cases would state which The issue before the Court is whether two way improper constitutes an to vote a certain panel by questions propounded to the venire to a attempt to commit the appellant’s trial counsel constituted an effort regarding particular sets of position certain specific to a commit veniremembers facts. wholly agree majori of facts. I with the set involved, in ty opinion no White, appeal arose in an the issue also way sought to commit the veniremembers to During capital murder conviction. from agree of facts. I also that our a certain set dire, voir holding in Nunfio member if appellant asked the venire [t]he (Tex.Cr.App.1991) applies testifying to both penalty he would be unable to consider (and in nontestifying witnesses cases proved confinement if it were for life victims). this, separately, such as write store, “at- went into a that the defendant however, emphasize holding today that our it,” aimed a tempted to rob it or robbed interpreted abrogation should not be as range head at short pistol at a woman’s attorneys attempt prohibiting the rule her, instantly, if killing her and shot prospective jurors a certain ing to commit testified to that. the woman’s husband upon set of facts. verdict based See Williams The trial court sustained 706. (Tex.Cr.App.1972). [appel- objection, “permitted but State’s re- venire could to ask member lant] a certain constitutes Whether prison if it were a verdict of life venireperson to commit the to a ver- turn effort in the provéd that a defendant shot someone upon particular depend facts will dict based robbery.” committing a in the course of in which the head upon the manner only that no error placed in This Court held not phrased the amount of detail and/or by refusing to allow the committed A of this had been question. brief review of some ... hypothetical question appellant to ask “a past opinions pertinent to this issue Court’s case,” peculiar but on the facts provides examples illustrative of what consti- based permitted “the that was improper questions. also that tutes both White, Densmore, Boyd, Carpenter, Specifically, “proper,” questions would not be 6. Because indictment, Merkel, designed supra. Gradney mere as recitations all opposed designed to those with a view to- venireperson's exposing attitudes toward wards statute, imper- specific would continue to be missible. *10 appellant minds as had more details than the was enti- where reasonable could differ improper. tled to ask.” Id. whether bright Unfortunately, I can of no conceive opinions Allridge our in While and White determining line rule for when questions clearly improp- illustrate that were much detail contains too or seeks commit er, opinion in the Hernandez the Due venire to answer. provides (Tex.Cr.App.1974) S.W.2d involved, very of the nature issues these good example proper question require case-by- decisions will on a review erroneously prohibited appel- trial court case basis. Hernandez, appellant from In asking. lant venire, to ask there any
wanted “Is mem- comments, With I concur in the ma- these who, panel regardless of ber what jority opinion Court. in evidence showed could not be- police telling that a lieve officer a willful P.J., MeCORMICK, WHITE, J., join. falsehood the witness stand?” concluding ques- that at 854. In S.W.2d proper, prior contrasted
tion we question1
holding regarding pro- a similar in
pounded Hunter v. Hernandez,
(Tex.Cr.App.1972). this stated that opinion emphasized Hunter
[o]ur ] [in framed, improper McBRIDE, Appellant, Lee Michael by emphasis clearly implied this that such per improper. would not be se ], specifici- The Hunter [in Texas, Appellee. The STATE ty, clearly prospective juror required No. 70174. answering ques- it. commit himself in The case, however, merely in the tion instant Texas, Appeals Court of Criminal juror, inquires general in En Banc. terms, he could conceive of the June 1993. possibility police that a officer-witness might lie from the stand. Rehearing Sept. Denied (Emphasis original). in case, appellant’s in Likewise general
inquired terms whether probation
veniremembers could consider victim was child. Unlike
where murder appellant Allridge, herein
the situation way tried to the veniremembers
no commit “always”
to a verdict that would follow. White, appellant did the situation
Unlike go any specific into detail about or the in which crime was
victim manner Also, asking the
committed. veniremembers
to “consider” a course conduct certain way to commit
no constitutes follow
them to that course conduct.
Finally, I courts have no doubt continue be faced situations
will Hunter, you testimony er his the veni- credence on 1. In ask re, whom did "By your personal knowledge who contradicted him virtue someone Booe, you place great- not know?” 481 of Mr. truthfulness