*1 Sweeney The State. that said the burden on the charge defendant places prove alibi. This objection supported by charge, instructs charge have a doubt reasonable as to they whether the defendant was on the where the offense ground alleged was committed, same, at the time must of commission they him. acquit
The on charge the law as principals aptly correctly ap- applies plicable the evidence in this objection that facts in evidence did not warrant such a This charge not well taken. is a case of circumstantial evidence, and the evidence shows that de- fendant and another passed where the obstruction was along placed track, on the close a thereto, seen proximity pencil found with the name C.” at “Henry point, having been shown kept have score card The facts day before. called for a as objection on there is no charge principals, charge, law of should not except principals have been pre- sented, no error. presents objection The the charge was incorrect in that submitted rocks, obstructions ties because or. the evidence did not show rocks had been placed on the track, is not taken. The shows well that ties had been placed thereon, and fact developed rocks had been on which track, the witness did not think placed would derail a train. present This reversible error.
This all the bills exception record, disposes and the other in the motion only is based ground alleged insufficiency reviewed of the evidence. carefully We evidence. It is a evidence, case based on circumstantial and we think the facts wholly evidence would authorize the jury circumstances to arrive at did arrive. the conclusion at which
The affirmed. judgment Affirmed. 17, 1912.—Reporter.] April denied
[Rehearing Sweeney George State. Decided
No. 1359. March 1912. Pistol—Evidence—Illegal Questions. —Carrying 1. unlawfully carrying pistol, where the State’s Upon trial of counsel asked objections defendant’s witness questions of sustained improper itself was not reversible by the court withdrawn error, injury having answered questions none of and no having been shown. —Same—Evidence—Accounting Witness—Hule Absent Stated. any pertinent testimony tending prove any side introduce Either can case; unlawfully carrying pertinent pistol, issues in the permitting no error the State account for absence of an Grim.—38. LXV Yol. Reports. 65 Texas 'Criminal witness, important argument. this fact could he commented on Overruling 59 Texas 152: Askew v. Grim. Clifton v. *2 22; Davidson, Texas Grim. Hardin v. 55 Texas Grim. 634. Presiding Judge, dissenting. —Same—Evidence—Reproduction Testimony. 3. of Where, upon unlawfully carrying pistol, important trial of a an State’s witness was absent and the showed State accounted for absence and that he testified, beyond the limits of State and there was the had theretofore no error, although reversible State did afterwards. the not introduce such 4.—Same—Evidence—Harmless Error. Where, upon trial unlawfully pistol, of a accounted for carrying the State important witness, an error, absent as any, to cause a was not such if reversal. —Same—Sufficiency of the Evidence. Where, upon trial unlawfully of a sustained pistol, carrying the evidence conviction, the there was no error.
Appeal the Criminal Tried District Court of below Harris. before the Hon. C. W. Robinson. from a Appeal conviction a unlawfully carrying penalty, pistol;
a fine and $200 ninety days county jail. confinement The opinion states case. Branch, T.
E. appellant. opinion. Cited cases Lane, C. E. Assistant Attorney-General, Maury, Richard G. Attorney, District Cited cases State. opinion. Judge. Presiding ON, DAVIDS brief The following appel lant’s counsel so satisfactorily the issues discussed presented by : record it is adopted of the court was indicted “Appellant and convicted a under of not plea guilty of unlawfully offense a on and about his carrying pistol person, and his assessed at a fine punishment $200 and a of ninety term days county jail.
“1. bills are drawn so as to exceptions show the charge, issues and testimony, the contentions of the respective parties, n in themselves contain all that necessary manifest the supposed errors. This practice commended, is to be as it saves this court labor of facts, statement of going through a has practice often been recommended by court. With bills of so is no for a statement of necessity facts, drawn there the exact are thus questions squarely therefore must presented presented, met decided. squarely 2 may “2. Hos. 1 and be considered Bills these together. By that under the bills it is shown to the plea guilty charge on and about his carrying pistol person, State’s evi- unlawfully verdict, and that testi- support appellant’s dence sufficient to believed, entitle him to an acquittal. is sufficient In mony, Sweexey v. The State. brief, whether bills, as shown the issue was simply appellant had the There at the time testified State’s pistol .witnesses: was a drawn sharp closely conflict in lines were testimony, timq. as to whether who person pistol had the testified to the State’s witnesses. It shown that was drawn in a house of was asked prostitution, counsel of witness, State’s while ‘You were mar- appellant, just ried about a No. jmar?’ 1). State’s counsel also asked (bill appel- lant, ‘Wasn’t you arrested once and convicted for up beating woman?’ No. 2). (bill view of severe inflicted penalty appellant, questions, to, these answered, were calculated although verdict, and in the light probably did prejudice before the verdict much mini- produce than the higher *3 mum The penalty. jury conclude, were and it apt only inference, natural the State’s counsel not asked these have questions, in the especially asked, form as unless he had knowledge that such was case, and thus inference these and illegitimate extraneous matters were gotten before the jury to prejudice and appellant, it impossible say these matters may that. have influenced more than minimum inflict penalty, if they did not about the bring conviction itself.
“The issue was whether the at simply appellant carried time, and these outside matters, were only calculated to should prejudice not have been appellant, thus be attempted to before gotten the jury. “In view of the heavy inflicted, these penalty matters, in common
fairness, demand State, reversal. v. Campbell 62 Texas Crim. Rep., 607; State, 138 Tijerina S. W. v. 74 Rep., Rep., S. W. 45 182; State, Crim. Texas Nix v. 764; 74 W. Rep., Rep., S. v. Wyatt State, 115; Texas State, 58 Crim. Rep., Williford 36 Texas Crim. 414. Rep.,
“3. Bills issues, 3 and 4 also Nos. show pleas and contentions and that there was parties, sharp conflict in the whether appellant person who had the pistol. bills, construed, state of the fairly show that counsel, State’s for the for witness, the absence of a purpose accounting State F. Schultz, for him B and to account putting the stand as a Schultz, witness, that said F. B. who was shown other proved wit- nesses to have been bouse of present prostitution, was absent trial, at the time as shown aby from the letter. In a is admissible to case this account the absence witness, detriment but it must be used of a defendant would show defendant had unless the to do something was not away. Appellant with the State’s witness keeping responsible was not witness, for the absence the State entitled in this inference the way to State’s strengthen reversal. testimony, requires Appellant conflict sharp 596 Reports. 65 Texas Criminal when required present this error in the motion for new Crim. State, Texas bill of Tubb v. 55 preserved exceptions. Crim. 606; State, Askew v. Texas Rep., Rep., W. (59 S. 152, 54 Texas Texas Crim. Rep., Clifton 414); Rep., 18; Hardin v. 55 Texas Crim. 631. submitted, Respectfully Branch, E. T. Attorney Appellant.” The is reversed is remanded. judgment cause
Reversed remanded. REHEARING. ON March Judge. it, the PRENDERGAST, While the record does not show hereof present original writer was not did not participate herein rendered. to make It will be a full statement of the unnecessary However, cause. directly we will state a it which bears part on the questions raised decided. witness, Schultz, Chris State’s first who properly
termed, is, witness, fully testified ordinarily prosecuting made out the case. other things, prac- State’s was shown Among tically witness, controversy prosecuting brother, friends, musicians Schultz, Fred and at least two other the offense is night charged on the serenading committed; in a house went serenading prostitute’s *4 Houston, “reservation” in of and there met the city the the That of his made up and some -two or three friends who his party. had; on the other instruments piano they and they played over a half came and laid they “while the playing of took it and it back boys on the One the handed piano. dollar and I don’t know something, made a bow said big him. He Schultz, witness, objection, Chris without was.” Then what him, brother look “My says you like buttermilk further testified: hall; out; I was the last one leave the dance me and started the by piano; had left down I walked back sitting the guitar they out; remark, ‘Oh, I him it; I was last one heard the to get make.the out,’ here, out of or I will shoot sons-of-bitches, your belly get you effect; I heard cocked; to that then the he was gun right something Kleine, another witness the the door.” W. C. at in “I was Mason’s testified: Blanche (said prostitute’s) objection, defendant, I saw the on or about October George place I saw him with I him draw night; pistol; there that saw Sweeney, I Schultz); on Schultz Fred (evidently standing right a pistol gun him the and as he drew the at time on Fred Schultz close he out the door; Fred rushed of Schultz) Chris Schultz (evidently as he just side side and by I standing pulled gun and were Sweeney v. The State. Schultz) turned time Fred (evidently around and at Schultz Chris belly into Schultz’s ran and then he shoved gun out ran him and we out.” just about that time a grabbed fellow young raises, effect, The first one Appellant questions. two will of we consider together. bill Nos. order to the second copy we will bill properly questions, show full, it and omitting merely heading identifying signature because than end. We this one fuller judge copy The second bill is: other.
“Be it remembered that on the trial entitled num- above term, bered cause in said court at said following proceedings had, under indictment duly to wit: The defendant was on trial that he did on and about his charging unlawfully carry person pistol, plead punishment which he and his was assessed guilty, at a and a $200 fine term three months county jail, on the trial said issue before the had jury proved by witnesses, Schultz, Kleine, its Chris J. W. January J. C. defendant drew a pistol presented his it at said person witness, Schultz, witnesses, Chris and defendant his H. E. proved by Blair, Ed. Smith him Harry Bugely, not seen with a own that he was not (defendant) pistol, party occasion, who had and drew the said one pistol the only and testified his own behalf that he did not have occasion, and on on said cross-examination asked attorney, the district ‘Wasn’t arrested once and you convicted object a woman?’ the to discredit his beating up testimony, objected the defendant and to which because same was irrelevant and because immaterial and prejudicial into going offenses, and the details court sustained objection, of other nob to consider that instructed the their jury deliberations of the district attorney and to action asking said question, and thus before there had been such getting an occur- the defendant rence as here implied by now tenders and asks that exceptions, his bill of the same approved, signed records in as a part and ordered filed which is ac- A. done, May, the 13th D. 1911. day No cordingly to "the jury assault or conviction went except what was or question.” of said asking have been implied *5 shows that while the first bill The testifying, the “ asked him this question, on ‘You cross-examination were just State to which defendant question objected about a year’ married on the and immaterial was irrelevant the same that and was calcu- ground the in view jury him with character to prejudice lated and objection, sustained said the court house, and instructed the jury then and defendant and there excepted, consider the to as whether defendant jury the to went to no married and bill of now presents defendant exceptions single or 65 Reports., Texas Criminal by tlie of said The bill was question.” approved signed asking the judge.
In Texas Crim. case Huggins awas wherein was found of murder in murder case guilty the second and his fixed at in the twenty years degree penalty peni McCord, Judge said: “The tentiary, through only ground in the for bill of taken set motion new up defendant questions by attorney certain the district propounded stand, second, and, when on the upon ground discovered The that newly exceptions complains evidence. bill behalf, when the defendant was the stand his own testifying cross-examination, ‘Are district asked him: attorney, you A married? You married in married Still Alabama? single? You Texas? wife two children South Carolina? married in a woman has children you You lived with who in the State of Texas? Did not? Texas? You married a woman Eastland, had a by Did live with woman who child you you that Texas?’ Defendant to these objected questions ground on the that defendant; to the they improper were and highly prejudicial etc. not find was not on trial We do bigamy, defendant answered the defendant. We find this questions qualification ‘As asked bill of each counsel exceptions: objec the court sustained the objected, thereupon that tion, attorney and when counsel the district finally requested ask such court questions, request be not permitted granted district would ask such attorney questions that by remarking did not that request and he not. Counsel did again; Counsel accepted questions.’ having to consider instructed are of opinion qualifi we that judge, qualified the bill must be It accepted by court. judge as made cation were sustained court objections questions shows that the not to line of pursue was admonished attorney district and the in their zeal fact counsel fre are aware We questions. are and in this improper case illegal ask questions quently have been and were not proper. questions these questions to be answered improper held that court admonished the objection, and district the defendant’s sustained down a rule that lay can not cases should desist. We attorney asked, except extreme questions improper because reversed illegal prejudicial asking ques counsel persist cases where him, ruled bill of exceptions has against after court tions answers there were to these questions further show must go case. injurious appellant’s We highly answers were these and that merit.” This the bill therefore, of are, contention. clearly against appellant’s point, exactly Texas Morrow the case that the is urged said: “It court erred Ramsey, court, through Judge *6 Sweeney v. The State. in the ask private counsel permitting prosecution repeatedly wag if at the witness he the defendant’s business Hodge place of 1907, the so, if during February, month of he saw appellant, after excluded objection the the of upon court counsel, and in private ques- counsel renew said permitting tion and state of the was the that presence testimony this, material and in he expected that legitimate prove Bank, of witness the the National that the defendant City cashier 1907, in his February, was of business the month place during in his that' the saw the Hodge place business the 9th of which would contradict and February, impeach and of Dr. ex- testimony Hodge, wife that he appellant’s the Cheney, bank, one the cashier of that pected prove by appel- in Bank lant made the the time personally deposits City during at wife testified home sick bed. appellant’s approving the Tt is state in says: this bill court connection with this bill that the defendant when the evidence was first tendered objected sustained; and this the court State’s counsel in objection arguing the ruled, of the evidence after court enacted the admissibility effort described his to induce the court to reverse his above scene in therefore, seen, is not It will that complained be ruling.’ erroneous, court is leveled actual ruling exception of counsel matter the court discussing statement against know how difficult it is often to jury. of the We presence a state- admissibility discuss intelligently least of the be offered evi- ment substance If case at bar. we were to and its relation adopt dence statements reversed because of the argument rule cases will be court of law before the presence on questions of counsel believe, seldom found could would, conviction we contest, because it serious would not be sustained where would correct in for the State case every counsel often happen offered; judgment, and to reverse where where of a to the extent vigorous insistence only went misconduct supposed views, illustrations of would be doc- counsel’s dangerous.” both new and trine 59 Texas Crim. Phillips in the case of Again, in the second with a degree of murder penalty a conviction which was McCord, Judge in dis- "fixed, through thirty-five years an which was even improper evidently what cussing anof answer “In the absence case, said: in that answered not be authorized to reverse we to the be injurious propounded.” an improper question because of App., speaking 16 Texas in Bass This court an improper argument— Hurt, commenting Judge through said: “But evidence—by attorney, the State’s warranted a fact and counsel for State assumed concede that we suppose Reports. Texas Criminal *7 in was not this court would proof, such fact which upon commented calcu- clearly unless such conduct very not reverse the judgment of defendant. To reverse in all cases rights lated prejudice did not themselves to the record ren- in counsel confine which would fact, rare be in der trials farces. would the case such irreg- which ularities would occur.” not State, 227, in v. House 19 Texas Crim. in
Again, App., speaking on the same all said: “If such Judge White Presiding error, remarks were held reversible but stand few convictions would test where the case had been able and zealous hotly contested in counsel the courts below.” court, this 29
Again, Davidson, State, in Tweedle through Judge v. 586, Texas Crim. the same App., discussing question character of said: “The counsel appellant’s objected this Concede language. it argument does follow improper, judg ment should be reversed for this cause. The remarks must only be they must be improper, of such nature as to be cal clearly culated to prejudice To in all rights defendants. reverse cases where counsel fail to confine themselves would record render trials farces. There tried hardly any importance case the trial during progress expression some unguarded is used by upon counsel either side. It be a would remarkable coin if this cidence were not true.” is that general which, rule be cases may while where admitted, has even been actually then,
illegal recon thereof, sideration withdrawn court from the such with error, drawal not cure the might yet great weight of authority it error, is that will cure the where the especially admitted preju evidence is not of such a as dicial character that the of a fair deprived State, trial. thereby impartial Miller v. 31 609; Crim. State, Sutton 2 Rep., 342; Texas v. Texas Crim. App., State, State, Texas 387; v. Crim. Nalley App., Morgan 1; Texas Jones 33 Texas Crim. Rep., and a list of other cases be cited to same long effect, but we think it unnecessary. would, indeed, It dangerous doctrine for this court reverse officer, because the
cases even prosecuting purposely, merely ashed n If question. doctrine, an we should improper lay any down such in our would, have the effect opinion, prevent State from every trial properly represented court, for, he, even inadvertently, or purposely* ashed an im- perchance merely question objection to which made promptly and the court it, further, went sustained even as and charged the it, every consider officer would prosecuting be prevented afraid to do doing 'duty representing State. We can not and do not sanction doctrine. are, Such matters be, as should left the discretion when, Sweeney v. The State. to the appellant no material is shown injury as in also aslced. See because an illegal court will reverse State, 143 W. 123; Renn v. S. Crim., 39 Texas Belcher v. by appellant’s to be noticed raised necessary The other question same matter exceptions, pertain third and fourth bills of in a Bill No. after reciting, general and are considered together. below, in the court the status of the case and the way, proof hereinabove, states bill No. copied shown substantially Kleine, Schultz, witnesses, January State had its Chris proved from his person presented “drew *8 that one F. R. Schultz, (Fred) said and the State showed Chris time, he brother of the witness Schultz was at said the present being Schultz, the back the on being Chris and the name of both Schultzes State, but the of said indictment the list of witnesses for among his trial, nor said witness was not on was present F. R. Schultz was former trial or nor testimony hearing reproduced, given any testified, on former any he had or that sought prove, proven, his defendant offered three witnesses testimony by And that hearing.” his him and by did not see with pistol, that (naming them) the own to show that he was not testimony tending showing on said Chris and that he did not pistol who drew the Schultz party occasion, also introduced four officers on said police the to show that State’s witness had failed refused tending as after the transaction identify appellant shortly the guilty party testimony on the same the case a fact case with night, being simply on each side the different theories and there a sharp supporting being testimony conflict the sufficient testimony, State’s being show, and no warrant a conviction was made to nor was attempt or there evidence that defendant was had instrumental any trial, or other, F. R. away said Schultz- keeping any no attack made faith of the State in not good was putting on or all evidence available and for the producing purpose the absence of the witness and support State’s accounting witness, case, her who had been asked the State proved brother, about his said Chris Schultz anything being had been first for the who asked about his failure on the same after the time identify night claimed “And the witness stated had the that pistol. having time of the difficulty his him at the brother asked by he, his brother was stated attorney where district Schultz, letter from his witness, Chris had brother got about two brother, F. R. Schultz), Louisiana; that he ago; (his weeks he did not know whether he brother) said (his stay not, out of the or that his brother was State at the time of trial the best of the witness’ last knowledge, mentioned of defendant objection over the proven same was Reports. 65 Texas Criminal immaterial, absolutely because defendant had made no attack upon faith of good all the avail- producing able, and because there was no that defendant proof was instrumental said absent keeping witness, F. R. Schultz, trial away from any and it was further immaterial to account for the absence of said witness thus use the absence said testi- witness as mony against him.” The court overruled said objections per- mitted said as to the absence and F. whereabouts “ R. Schultz to to the go evidence. this bill approving court did so with this “F. explanation: Schultz, R. about the party which inquiry was made by the witness, State’s of the had attorney testified aon previous court could know at the time of its ruling, pred- State intended to lay icate to introduce evidence of the absent F. R. taken on Schultz former trial. The State closed the case without testi- offering mony of the absent F. R. Schultz, and defendant did move to strike out said testimony and did not assign error supposed motion new trial.” The appellant took bill, another Ko. qualification one above wherein, judge, after in substance said reciting bill Ko. 3, and the qualification this: thereof recites judge, “But the court did not state that reason to he did know believe or suppose or think that said evidence had been offered for any such purpose, there now an from Galveston appeal *9 County, in the Court of Criminal tried pending Appeals, by court, of this to presiding judge of the State involving right reproduce of an absent testimony witness who has removed State, died, or and there of some as to the being right the State to so said produce testimony, there being nothing that and it that was the of the indicating purpose the rule of being of said to allow a bill practice exceptions judge to be made im objection testimony full mere that irrelevant, material of the defendant said excepts qualification bill, his and here thereto, now his of tenders this bill asks that the same filed be and ordered as a approved signed of at part case, the record in invites the court or district this torney to state for the pur that said evidence was offered definitely testimony introduction pose showing predicate of said absent court to trial, witness on and invites the former any that he such say purpose; even offered for thought absent, said witness was offered to show that solely during as to so account for the stand a witness him on putting inference; this bill is trial, State’s case strengthen A. D. May, day 29th this the accordingly signed approved 1911,” judge. which bill No. 4 was signed any introduce rule, 'is either side can in the issue pertinent prove any pertinent tending Sweeney v. The State. do any the adverse effect of may away or which lessen is introduced against deduction that from evidence may made Proc., 2d him. In Law and the recent Ency. Standard work vol., 773, laid “On the trial the correct thus down: p. doctrine is witnesses, of a criminal available the failure to produce accused, absence of omitted the State or the wilfully evidence omitted, forms a or that the evidence has been suggests, wilfully defendant, deduction for predicate any legitimate or against evidence appears where the of such materiality competency . . .” rule. Among authorities Citing many sustaining Iowa, States, Alabama, them are from the Georgia, cases United Massachusetts, Missouri, Kansas, Minnesota, Kentucky, Michigan, Carolina, Korth Texas and Oregon, Wisconsin. in
This same doctrine is also laid down work of recent Practice, Am. & of Law and vol. in lan- Eng. Ency. p. cases, “The rule under guage: may civil which counsel prevailing comment on the failure of the party produce adverse accessible to him or of the apparently witnesses having knowledge issue, facts is likewise cases. applicable may criminal Counsel comment the failure of the State or defendant produce evidence,” witnesses or the authorities as the citing substantially above quoted other work cites. States, the case of Graves v. S., 118, United 150 U. the Supreme States,
Court of the United Justice through Brown, Mr. said: “The rule, cases, even criminal has party if within peculiarly his witnesses whose power produce testimony would elucidate the transaction, the fact that he does not do creates the presumption testimony, unfavorable.” produced,
This court case of Jackson v. 56 Texas Crim. Rep., establishes the clearly rule above announced. Speaking district argument attorney the failure discussing father, to introduce his who was shown to have been present when the transaction occurred about which he was prose cuted, Ramsey, said: through Judge “The argument the district was well attorney within of a rights. The failure place upon stand one so related closely *10 father, him as his who is shown and must, who present, nature of things, have been advised of the circumstances of the crime is a of charged, proper subject comment discussion. In ordinary and the inference is fair that experience the testimony of the so person related would have been unfavorable. Even under our strict construc in tion the- respect to the wife it has been held that failure of the defendant to use her as a witness, where circum stances would have known in show she the facts ais proper subject comment.”
That comment of the district on attorney such matters is proper is the authorities established in this clearly State. Of this there Bepobts. 65 Texas Ceimiital 604 542; State, Rep., Texas Crim. can be no question. Eggleston v. State, State, Rep., 52 Texas Crim. W., 941; v. Tabor v. White S. other 202, State, many 53 Texas 387; Rep., Battles v. Crim. cited, deem it unnecessary. cases but we 694, State, W., the case S. which was Logan in murder the second wherein the was convicted of murder in twenty years peniten- assessed at degree punishment court, Davidson, said: tiary, “Appel- this through Presiding Judge lant issued at subpoenas offered evidence four the instance for the Jones stated State witnesses and Shanks. It Bagsdale, transaction, the bill of these to the eyewitnesses were and the had stand the request refused to them on the at put to show object appellant. introducing process under’ sworn, That said witnesses had attended placed instance State, the rule as witnesses for the and were not there at the believe the right of the etc. We defendant/ legitimate testimony introduce the subpoenas, prove State, and three had been these witnesses subpoenaed stand.” the State had refused to them on witness place State, 11 Texas Crim. App., court Again, Thompson was a found rape appellant guilty-and which which White, in dis Judge assessed the death penalty, through Presiding ravished had stated the evidence which she girl cussing ravished, at time she that her father-in-law present trial, dead, as the addi then, at the time of said: “So far tional of the witness of fact her father-in-law was statement dead, concerned, it was admissible as it accounted for fully ad who, of this man from the other evidence old nonproduction been, duced, doubt, most beyond important of the prosecutrix.” corroborate the evidence State, in the case of Jones v. 7 Texas Crim. App., Again, theft, was a conviction of horse the punish prosecution held ment assessed ten court years penitentiary, stand, hav the witness for defendant was when others, them, two examination that naming testified on direct ing with him had wit together at the time present place Johnson, between nessed a certain horse trade Airhart it was to ask on cross-examination where these two persons the witness. when last heard from by State, has held in Askew v. 59 Texas are aware that court We 152; 46 Texas Crim. Rep., Clifton v. 631, that 55 Texas Crim. Hardin v. in either of
inadmissible, we that said these agree holding do had, this court in view fact that Especially is correct. cases thereto, above, contrary held the which cases expressly prior as shown in view of reasonableness of such evidence overruled, and were not announced above. rules general *11 605 Sweeney The v. State. that of this State the law above, it is unquestionably As shown mate- other has fact that upon either side can comment introduce not produce it did its which testimony power rial is upon be commented can that The reason before the jury. it for the purposes consider for the is material that it case, supra, in the Jackson Ramsey by Judge stated If Graves, supra. the case Court the United States Supreme should be con- it can and certainly then upon, it can commented not. And upon it is commented whether jury, sidered not com- show, effect, that it was in this case that the bills fact not and can before mented or discussed upon the question. does not affect admissible for testimony it opinion our Again, desired, introduce reproduce the purpose, time of Schultz, to be who was shown of Fred testimony his return thereto. no certainty the State and trial outside of it does not affect did introduce not afterwards fact that the State not move to so, as did exclude especially time At in this ground. it from the jury could not that such case, recently court had decided State, 63 Texas introduced, judge through special (Kemper bill, W., but as shown there was 1, 138 1025), Crim. S. Rep., State, case of Robertson v. appealed then in this court pending over court the on the County, presiding judge from Galveston decided, but which had not then been trial of this ease presided, it held that such admis has, then since wherein Texas State, Rep., Crim. 142 sible. Robertson v. S. W. even if this should not have opinion, our Again, such error as should cause a admitted, it was not reversal Renn supra; this case. Tweedle v. See Texas W., and the cases therein cited to that S. he cited on this A other cases many effect. great point, we think unnecessary. therefore,
We, no reversible error in conclude herein opinion the previous judgment rendered revers- aside, a it, be set granted and the remanding rehearing ing lower court be in all affirmed. things judgment
Affirmed. Judge. HARPER, At thetime of the rendition of the original therein, I concurred a more mature investigation I not think matters do presented, present errors as in a reversal of the and I agree should result to an affirmance of it. Presiding Judge
DAVIDSON, (dissenting).—At day former *12 EepoRts. 65 Texas Criminal by term the reversed remanded herein was judgment court. The brethren My State has filed a motion for rehearing. in an opinion written have decided to by Prendergast grant Judge affirm I rehearing agree now can judgment. them in this the matters of the case. After a review of disposition involved by as written appeal, opinion rehearing brother my I am more Prendergast, orig- convinced firmly inal is correct. I dis- lengthy do not propose go into cussion of the matters involved. cases could cited Many holding be that when answered, are asked where improper questions and not objections have excluded, been the answers do not sustained and constitute held that error, reversible in those cases it was also shown, no injury shown. further hold is injury The cases then the error reversible, is the answers excluded. although It has also been held has ad- that even where been illegal mitted, reversal, but these have may always holdings cause always there was no shown qualified by injury statement that by its admission. I do into a discussion of those propose go cases or those now. these questions many There are cases where be- questions arisen wherein the have been reversed judgments cause is injury shown. Wherever shown or injury probably shown, then reversed. under authorities should be judgment course, Of these sometimes come on very close lines. questions Wher- ever matters arise, of this character rule to be consonance ought law, with the basic of our which is that accused principle everyone shall of crime innocent until his is established presumed guilt always reasonable doubt. doubt is to be solved beyond legally Such in favor of innocence and not in brethren take favor guilt. My other view solves doubt the accused and favor against safe, rules, of his This is The legally wrong. legal keeping guilt. above, trial, in mind the stated of fair propositions presumption innocence, doubt, reasonable which should govern may evidence, or be summed as follows: If up (1) illegal unauthorized, conviction, leads to a of a is error reversible probably it. rule seem be dis- nature to admit This correct without conceded, If the evidence admitted is unau- (2) guilt cussion. thorized law and the conviction carries judgment greater minimum, error than the then the erroneous. clearly punishment debatable in our There a third jurisprudence. This is not propo- that where the be thus stated: may illegal sition which asking nature, excluded, answers are damaging although questions answer, if the yet conviction occurs permitted beyond minimum, is a one or heavy punishment manner of examination have led may conduct and to a this illegal minimum, or even than the have led to the con- greater punishment reasonable doubt and itself, and turned the the presumption viction defendant, then it be reversible ought against of' innocence Sweeney y. The State. Now, error. Such I settled understand to he the law in this State. find those rules to this We was for applying case: judgment jail. two days imprisonment hundred dollars and ninety minimum punishment charged the offense the indictment one hundred dollar fine. The defendant here has allotted to then him one dollars in and in fine, hundred excess of the minimum addi- tion jail. questions That asked with reference ninety days on a set out appellant’s woman, attack and the matters as brethren, bill of is con- my illegal mentioned *13 avoided, however, ceded. It is to be the answers were because sought it permitted, but before the as to make got way occur, them believe the matter did the verdict responsive to that theory of their conclusion.
As to the admission of the the absence of regard to one of main witnesses, the State’s under tes- all the authorities this aware, is not timony admissible, but so far as I am has only been held inadmissible and reversible. fatally could _The not, under held for the facts absence responsible State He absence, witness. to do with nothing connect him fact the witness sought This absent. absence witness State admitted improperly defendant, against and this all the It was a cases. seriously contested issue before the had the time contended place by the State. One witness testified it, he did evidence otherwise shows that did he Now, not. in this condition of the record absence of the State fault on the the defendant part of is thrown in the scale against him, and illegal to some regard assault have made may upon woman some time previously, to be sought injected into the- case against him. That the conduct officer was prosecuting wrong trying inject illegal matter in the is conceded my brethren, claim not of such as to reversal require nature of the That judgment. responsible the absence of the State witness record, demonstrated these clearly yet matters are two and its injurious thrown effect is into scale reflected in the ex- the verdict imposed by treme punishment How this jury. affirmed is to my could be mind judgment incomprehensible. I is correct, still the original opinion believe and that the motion to be overruled. I therefore rehearing ought respectfully enter the affirmance. my dissent to