*1 Reports» 50 Criminal connection are you charged that is not sufficient to warrant a con viction of' that he true defendant as knowingly passed said alleged on a Dowd, check cashier for forged Mr. the Payne Mercantile Company Hamlin, Texas.” Under Huntley State, v. 34 S. W. 923, and Rep., State, v. S. Riley we believe that under the facts of case should been- requested charge given. Those cases seem to be directly another trial if point. Upon the case should developed record, as is manifested this" suggest the trial court charge one in substance requested, the same. charge The should to the facts. If applied Brown check, received the But if be sufficient. Dowd it from received then the appellant, charge should conform to such facts. is reversed judgment cause is remanded.
Reversed remanded. v. Vick Harrison State. April 2,
No. 2043. Decided 1913. Rehearing denied June 1913. 1. Degree—Sufficiency —Murder—Murder in Second of the Evidence. a law, evidence is to sustain a question Whether the sufficient verdict is pass upon this court does not weight but these are the the evidence its credibility; questions jury, will for the and where the evidence sufficient to sustain verdict, the conviction be sustained. —Same—Requested Charges—General Objections. 2. pointed error is Where no out to refusal of the special court to submit simply general charges, objection refused, requested were
number, appeal; yet, considered, the same can not be considered on when there Following Byrd recently no reversible error. decided. —Same—Charge 3. as a Whole. Where, upon from a appeal conviction of murder in the second degree, whole, correct, charge court’s the error. considered there was no reversible Killing—Charge 4.—Same—Accidental of Court. Where, upon degree, trial of murder in the gave second court a full upon question charge killing, complaint fair and court erred in accidental failing charge affirmatively taken, issue not well besides, general. 'too —Same—Charge 5. of Court—Intent to Kill. Where, court, degree, trial murder in the second charge, kill, specifically submitted the intent issue of there was no error in appel- complaint so. that he do lant’s —Same—Charge 6. of Court—Reasonable Doubt. Where, upon degree, trial murder in the second submitted together manslaughter, negligent
that offense accidental grees, homicide degree, first killing, reasonable doubt and doubt reasonable between different de- charge, full and accurate error. v. The 1918.1 Exception—Evidence. -—Same—Argument .Counsel—Bills 7. counsel, exception, complaints argument bills of In the absence of *2 testimony, appeal. can be considered on admission of
and the Jury Exception. of 8.—Same—Misconduct Law—Bills of Jury—Jury exception, qualifications jurors In the absence of bills of mis- of the besides, jury appeal; can not be considered conduct of on of the statement heard on motion for ground facts new trial on misconduct be jury can not the same not filed before the court considered where was State, adjourned. Following ICnight v. 64 Rep., 541, and other Texas Grim. cases. —Same—Evidence—Former Conviction—Other Offenses. 9. hearing jury court not it made known to the Where Was another was too remote be former conviction of crime that defendant’s evidence, court should not have allowed counsel for State admitted in harmless, however, interrogate question;
to there as the error was defendant Davidson, Presiding Judge, dissenting. no reversible error. 10.-—Same—Former Conviction—Remoteness Conviction. opinion See for a discussion a former as to when conviction of other crimes
is too remote evidence. admitted in 11. Exceptions. —Same—Former Conviction—Bill of by exceptions, Where it shown defendant’s bill of as qualified by the in hearing jurors trial, the motion for new shown that the matter former conviction of defendant of other crimes not, had no trial, them and effect at the time of the know that convicted, defendant had been no there was that he showing had been prejudiced by testimony, there was reversible error. Following Roberts State, v. 48 210, Rep., Grim. cases. from
Appeal District Court McLennan. Tried below before Hon. Bichard I. Munroe. Appeal from a conviction of murder in the second degree; penalty, years ten in the imprisonment penitentiary. states the opinion case. Eason, Williams & Williams and W. S. appellant. On question
of insufficiency of the State, evidence: Mitchell v. 475; 28 S. W. Rep., Johnson v. State, 424; 37 Rep., State, S. Wilson W. v. 53 Texas Crim. 556, 153; 100 S. Brooks Rep., Rep., State, v. 56 Texas Crim. Rep., 878; 513, 120 State, S. W. Johnson v. Rep., 52 Texas Crim. 510, Rep., 845; 107 State, S. W. Tollett Rep., Texas, v. 44 95; State, Elizabeth v. id., 27 330.
On question objections to the court’s charge refused requested State, Williams v. charges: 24 Texas Crim. App., 342. On question duty court’s submit defensive theory: v. Wheeler
State, 56 Texas Crim. 121 Rep., 166; S. W. Pickrell Rep., State, v. 60 Texas Crim. 572, 132 S. 940. Rep., W. Rep., On question of former remoteness conviction: State, Davis v. Texas Crim. 629; Winn 538. id., . Lane, Attorney-General,
C. E. Assistant for the State. Cited eases in opinion. Reports. 71 Texas Criminal Judge.
PRENDERGAST, 8, 1912, On March grand charging McLennan indicted and with appellant, unlawfully malice killed and murdered E. M. implied Huckelberry shooting only him with indictment January charged 1912. The murder in sec degree. the second He convicted for murder ond and his degree penitentiary. fixed at ten penalty main that the
Appellant’s contention seems evidence insuffi- cient to sustain the verdict. This is pressed with much point earnest- ness and vigor attorneys. able Whenever is necessary for this court to pass upon case it- question necessary sufficient,—not to determine the evidence it is whether that there may been evidence to ample have authorized acquittal. Whether is sufficient to evidence sustain verdict is a of law which question this court can does does upon. This court pass pass upon *3 weight of the nor its evidence, credibility. Those questions are alone case, for the jury. So we have considered evidence from the not, whether standpoint of or if believed by the it was jury, sufficient to sustain verdict. The statement of facts voluminous. Yet, gone and and thor- carefully again again over considered oughly. It our opinion that the evidence sufficient was to sus- amply tain the will to give verdict. We not undertake evidence in full. It is unnecessary. a give We will of some of it on the material summary to undertaking some instances. points quote except For some three or more owned, or and controlled, with his wife, they children, having lived a farm in McLennan some mile west County or two or southwest from the of Waco. City from City One roads ran public Waco one along sides of farm. a Through the farm branch ran ravine about house, yards from branch appellant’s there at were difier- trees, etc.,—in ent locations, undergrowth, briars, one place this. So was considerable of much so from some in it a places at barn could not see house and person appellant’s could not be seen therefrom in said thicket. There were different running paths through and from a points along thicket certain could see path person barn and therein and person there-along a could seen from appellant’s 3, 1912, cold, a real barn. January though bright, appellant’s quite of said morning day deceased, On sunshiny day. Huckelberry, a friend, Horsfield, procured shotguns buggy double-barrel After hunting few miles west of Waco. hunting birds and went until at noon or just just prior farm west appellant’s localities Waco started towards along public back day, they noon of that said saw birds in they appellant’s reached branch they and when road thicket, their horse and went they hitched about around said field hunting this thicket for the purpose near field into over field entered appellant’s where these parties From birds. killing were they a thicket therein reached they until distance and for some distance barn. The house and view from appellant’s open plain v. The 1918.1 with soon entered field As yards. they about barn, to them to them and he, at his saw holloed out being guns, their heard distinctly very Horsfield'testified he off of the place.
get there”; to hell when “Well, fellows off of you get say, man’s voice off Huekelberry to “come on and let’s get heard that he called he ” am fellow; I “To dickens with that Huekelberry replied, here birds,” continued Huekelberry at one more shot these going get branch. Horsfield thicket on said on into the from where he then was ‘ field. and went out of appellant’s started back immediately said at men, day two or with some three Appellant o’clock, at 12 time, working or just before just particular holloed E of these. testified that appellant H. Heir was He barn. one at “He first holloed saying: before he gun, of times couple got out ‘You had better says, get and then he them, know; yelled, you look see the parties here.’” he “I did not where Again, testified: I am not sure how it was long were when first said to out. get he it to about should five judge time until he shot. I actually twice, minutes. about he went I think Mr. Vick holloed stood there. When he the house and and he gun, came back with out,’ them or ‘I have give holloed ‘I says, get will again, there, stood fellow on just finally time.’ Then ‘Well, will says, I (appellant) the hill did not make move the bullet thicket, through and if hear just right through shoot It after he was I will out.’ guess they trees That I in the field. was when I first looked to see the parties *4 looked.” the parties testified: ordered
Again (appellant) he “When he off get- better loud, says, first and then ‘You had right he he place yelled That what That is the language. out here.’ That is he said. exact said: waited little he “He a Again (appellant) what I understood.” He ‘You had better out there.’ get after he holloed. He says, while He out; have to will them time to I time.’ get give ‘I says, time than there.” suggested take I have any longer did not contradiction, further shows that immediately testimony, above, he holloed, .house, as stated went to his a got appellant after rifle, lot, in his back out in the fork placed up came 44-Winchester towards this thicket it over it. E. fired H. post, pointed fence shot, he appellant judged, right further testified towards Meir testified he thinks he himself told Meir that Appellant thicket. shoot house, brush; his there in the get over he go tell he shot over in could not himself where towards the that he it was shown to be 449 yards actual measurement By bushes. this shot Winchester rifle to the where feet post appellant forked
of, must have been at standing and about where deceased walking killed. It was shown the deceased was clearly the time he was front, heart, from the his and that with ball near shot a 44-Winchester his outer through body, lodging clothes entirely the ball passed Reports. Texas Criminal '54 death. shot immediate The deceased hack, produced on his head towards barn and his feet directly fell appellant’s prone, therefrom. Winchester back This riñe afterwards directly experi- with, mented and shot with the character of loaded same shells he shot, used when and that had appellant distance carrying Mr. Forsgard, shot perhaps fully yards. expert, standing at where deceased’s feet were he found at the point dead, sheriff’s hat stuck at about barn the same up height the shoulder of man at the shot holding gun, where place appellant barn a- and the ball struck said short beneath this distance gun, hat and that ball the barn through went two one-inch into planks and fell therein.
After deceased and Horsfield at separated when holloed appellant them, field, them out of his deceased went into thicket ordering that night. where dead was found Horsfield went out body into public they road where had hitched their for buggy, there waiting return, some Huclcelberry he would return when thinking he birds in field. got through hunting appellants However, after he waiting hours, several concluded that deceased might have gone field, towards Waco through caught street car, therefrom, a great gone home; distance wait- after time, Horsfield went ing length back to Waco to liis He home. there if had began Huclcelberry returned, inquire find could not had. would turn thinking Waco, Still up waited till about night, called told the along officers and others of his alarm about Huclcelberry, whether he knowing had gotten lost or killed. been When he not turn up officers and friends deceased, told the circumstances being Horsfield, went out after to hunt for first went to Huclcelberry. They appellant’s house, reached night; about or after o’clock that just appellant and his wife were in The officers retired and bed. had some little difficulty in did, aroused. When appellant they they told getting for what hunting they supposed man, were out be a lost and that the him he was on farm (appellant’s) last down near seen or at this thicket, and asked down permission go into his field in for the purpose hunting Huclcelberry. this thicket Appellant along. or wanted to officers declined offered, let him go. *5 their, this the officers and After drove getting permission party buggy thicket, but to tied towards this their horse to down fence hunting this thicket then Huclcelberry. and went down into They one, in and the friend in officer another going direction. separated, dead thicket, officer-found the Huclcelberry soon the body .Very friend, at called his his stomach and once and they on saw that he lying shot and killed. Deceased had his had been double-barrel with shotgun at examined de- gun, him. The once thinking perhaps officer shot himself. had and killed But examination accidentally ceased were loaded and had barrels that his gun body found both i9is:\ v. The but with shot with ball. shotgun, They been rifle at once towards and after immediately
started back appellant’s, getting out met from coming thicket his house appellant directly to where they had found body the deceased. told they When him that they had found the dead wanted to down and body, appellant go with them it, but they this, see declined to him to do and permit told him go to there; to his house and remain back that he could be of material service the matter and that and they go nearest ’phone them and for an undertaker to justice peace convey for the ’phone body replied, back to Waco. “All I will Appellant right, here when be wife back; away anyhow, I have done carried and will get my I you back.” This officer further that while here when testified right you get they house to this thicket appellant’s were down from where they gone house, to appellant’s dead and that returned body, they found this before above, they him, as down there going stated and as met they that he back them him insisting go back with declining his wife his house, away he told them that had carried a few who lived neighbor’s to one of taken her and had house Waco, and the officer was positive from him towards hundred yards It was time. at not at a told him this time and so later. appellant officer, Hatch, and the who was with party shown that when the further him, and aroused told they went house him first man for a lost and then asked to hunt out premises came they that day. on his place hunting around seen anybody him if out the life out of me worrying are “Yes, they just said: Appellant hunting.” That his very day out wife here; were some here out of me.” life said, worrying are “Yes, Appel- they up spoke stock my or some- “Yes, eye,”" shot they said, lant then tired of these hunting awful people are “We getting He says, thing. it.” stop to put going I am here, my place that on Christmas testified day Billingsley Clyde killed, that ten before deceased he and days week or only some about this same Hood, out in field friend, were Willie boy robbing birds, like things at wheat shooting guns with their thicket there; out holloed at them get saw them and that; that appellant then holloed on. and went He understand at first did not they “Well, said, there,” and Willie Hood said, “I said out get don’t,” using “I will and was you see if time,” replied, us ran them; then started directed language profane and shot them ran down towards house, got to his back them, the near hitting very that he came his gun; them with directly at They were to them. close heads and very right over their bullet passing at when he shot field, of his out talking, going walking along Hood out. Willie and got as could they ran both rapidly thing. testified the same substantially Bell, T. both testified Waco,
C. and W. barbers McCoy living Hovember, last day, which would Thanksgiving *6 Bepobts. Texas Cbiminal six killed, five weeks before deceased that went hunting some they with their and and dogs they as were this road beside guns passing along farm saw birds and they some down towards this thicket appellant’s out, their flushed covey that dogs got of partridges; thereupon they went over in field towards and it appellant’s this thicket near to for these saw purpose shooting and other birds which partridges they there. That saw appellant running them came down toward them here, here; out can’t hunt cursing holloeing, "Get in. 3'ou here,” out here.” And “You all out said, to hell and he .get get n cursed as soon as them him got them and he near told enough they “Well, out they were if he want them in going there, didn’t and he said: God damn I mean you, too.” He then around, turned his ran to Bouse, gun, running his came back towards got them when got he out in his he at leveled his fired. gun .vard It Williams, was shown that Hr. man, old Vick, the uncle of Mrs. lived about wife appellant, yards appellant towards Waco them; and that at that time he meals took his that had appellant at his said rifle, house Winchester belonged Williams, had had there from some time in continuously 1911, until February, that night killed; deceased day that as soon as the officers first and told man came out were for this lost appellant they hunting had and asked him if seen him on his premises he that day, and got him, down hunt as as permission soon left, the officers wife, Vick, testified that Mrs. she told her husband that she there herself and going stay to take “darned that home.” She claims that this was old after the officers had told them that had found the they body this dead man. as' officer, n stated above, swore that when he first went back house, to appellant’s deceased, they after found just body appellant only but, fact, as a him, told matter while they gone there, were he down his wife from home one of the neighbor^. took him Appellant went self testified hack told his wife the officers man him to found the dead and wanted stay at house till they and undertaker justice peace returned with to get bodyr, not want to stay she said she did wanted to go some said, want take that where, you and she “I old gun away from here.” “There nothing ain’t me.” replied, going bother Appellant They did that night then testified that take this both Winchester uncle, Williams’, house to Mr. her and that rifle from his night left there. The evidence further shows -that at no time during time, or at tell the officers or others night any at that he had Winchester rifle his house and shot it that da3r, . n shown above, it; they and said to them about whatever nothing two went Bunted for or three for such rifle repeatedly da3rs it and not' hunting house could find it .through therein, and house; rifle found little tried find 22-targct to' house; that in said Williams’ it took them said Winchester *7 1913.] v. The did, found back they it. they and when so, days, three two or to do hidden, not exactly it was and while facing, a
the room behind window it took some seen and readily it not that could that was so placed could cross-examination, when pressed it. to find Appellant, search tell he did not why reason satisfactory not give any and did not give he that day shot having that having gun about the officers that had other any at or night that not tell the officers did uncle’s. to his back from his residence taken that gun was of the witnesses as to whether by many There much experimenting they when a where the feet of the deceased were standing not person at at the man the standing post be seen aby found dead could body versa, And said vice barn from which fired Winchester. appellant where a standing see standing whether a man at this could post person found. wit- Some the were, the body feet deceased where barn, not see see, nesses did not and could testified that they were the feet of the deceased nor man at said where a post standing a could see they that at said found, versa, standing post vice when found. Some at deceased’s-feet were a where person standing point see said barn they testified that could witnesses, however, for State could stand found and some from where deceased’s were feet the feet a at standing said barn and see at where post person deceased, a two feet south therefrom. point words, In other sufficient to show that testimony was deceased could have been seen by at the time fired said shot. appellant Appellant claimed on this that a hill branch was a obstruction point physical so that per- sons at the standing two could not see or respective points be seen another. engineer one The State introduced civil who made showed this hill survey accurate topographical did addition, above, stated Forsgard obstruct view. stood actually where feet of the deceased were found, at the and shot the point at the hat the sheriff shot stuck same rifle on the appellant up about the height said barn at same must appellant end of have had he shot and that he missed the hat a few inches hat. These demonstrations physical and struck barn below ball fired that a Winchester rifle showed without question said thicket by appellant towards could have and in all probability killed him. All strike deceased of this was for the The jury. on this sufficient evidence to sustain point amply either finding whole on this Taking think way. point, we evidence the. doubt, that the ball fired establishes, from this Winchester rifle struck killed deceased. instantly evidence did' not there is finding other evidence to establish any tending justify killed shot, or the deceased. It is unnecessary person, evidence. further state motion grounds trial, first eleven new subject, the refusal of the court complain bills of exceptions motion, These charges. eleven special grounds his said give Reports. Criminal holding court, uniform of this are too general under the require consider them. As of them sample court the first. It give is: court defendant’s erred refusing special charge “The Ho. Then and no more. charge as follows:” It quotes true that after adjournment the court "allowed prepared, filed, refusal hill of the court to exception this, as each of said other special charges. In that bill thus made and filed, after the adjournment court, appellant undertakes to give *8 the reasons he asked why such a charge. But none this is stated of the motion for trial new or otherwise in the record,- the term during of That court. such of grounds the motion are too general, under the of this court, to holding this require court to review them is without It question. is to unnecessary cite point, all of the cases on this cited, but see Byrd v. S. W. Rep., 1068, and authorities there these notwithstanding assignments are too entirely general to require this court to review them, yet, have examined each carefully them, of and, in our the court opinion, refused to properly give of' them. any Wherever the question to be submitted attempted by any these special to charges necessary submitted, or it was proper correctly, fully submitted in the charge the court. aptly- sixteenth, inclusive, In the twelfth of the grounds of the motion trial a new are of some word or complaints for short the paragraph of We have charge. carefully court’s considered each of these. It is un- to take them our separately. necessary up opinion none of them defect, error whatever or any any fact, show reversible court’s the the of, charge' when is complained as whole taken charge together, done. necessary which is is: seventeenth “The paragraph erred in failing to charge on issue of killing, the accidental this
affirmatively one being of the This is the whole the It, too, main complaint. defenses.” all like of the complaints charge court, others is too the it. this court to review' However, we have general require considered no error is shown reversible any. of them by one Take every the It will be seen complaint the sample. as a not of ground on accidental but that killing, did the court give that the court charge did thereon. The affirmatively this sub- charge failed to courts It covered the case and charge. fair and full, apt every point ject It as follows: the evidence. made by it as act done offense charged accident, are further is an by “You been a degree has carelessness or negligence where there except homicide is criminal, death excusable the the law regards accident, misfortune, caused though human being happens of a is in another who lawful object by the acts of prosecution instructed, as heretofore are means; and, you that the charged lawful alleged legal at the 'time with killing right, defendant as man ordinary prudence and caution would exercise such care circumstances, similar to fire off his gun same or the pur- under the 1918.] him to cause him leave alarming the deceased or of frightening
pose thereon, or on there if he was hunting his premises, believe from the evidence and if you defendant’s permission, the deceased was defendant, knowing if the killing, the date of the in that direction shot purpose thicket on premises, make him leave said witness Horsfield to premises, alarming thicket, defendant knew deceased was in said if that the you believe off his to alarm him make leave premises, but fired gun as a man of ordinary at the time such and caution prudence care using circumstances, him.” will use under like you acquit in failing is that the court erred Appellant’s eighteenth ground kill, intent to one of charge being the issue of affirmatively main defenses. of the court did submit issue specific- The charge a reasonable beyond to believe ally jury jury required fired doubt, all must with requisites, kill,” to believe “with the intent to also required shoot malice implied in like manner unlawfully in our take It is unnecessary, kill deceased. thereby opinion, charge complaints and review of the other of up all them and none of of the court. We have considered carefully *9 technical at all. reversible if even error error, any slight present murder second degree, manslaughter, in the charged court degree, the first accidental reasonable negligent killing, homicide of reasonable doubt. doubt different and our degrees, opinion between most full accurate charges it one of the and we have complete, apt, in our it consider, and, had to submitted issue opinion, properly every or justified by was authorized the evidence and was in strictly that with and accordance thereto. applicable motion for trial
Some of the new of grounds complain argument in some his of and of county particulars, asking attorney ques- written made and by tions about a statement of the admission appellant, and said witnesses Hood and also of testimony Billingsley, of of these matters are of Bell, and but none of bill McCoy presented by yerified so riot and can not be and, course, being presented of exception this court. considered by motion new that complains of for trial he appellant’s
In one ground Edwards, juror; not a in another and qualified the jurors, one of Neither of these matters is pre- that the jury separated. he complains however, shows the court record, that bill of exception. sented by many of motion the testimony heard grounds appellant’s on these two and forty-three pages typewritten evidence embraces witnesses. This testified, and among were examined that witnesses shows many all this tes- court, and that the after hearing all one jurors, but as motion on those two as well grounds overruled appellant’s timony District Court the term of the This ease was tried at all the others. March 4, adjourned convened on and which County, McLennan May trial was overruled on motion for new 15, 1912. The on May Reports. Texas Criminal [Jum, and and notice of Said statement of 12th, appeal given. on said two motion grounds appellant’s is entirely sep statement trial cause, and distinct of facts on the of the arate 11, 1912, it was filed in the until July and not lower court sixty days of the motion overruling trial, after the for new fifty-seven days It after the court. been adjournment always has held a uniform line of decisions that a statement court of facts on such matters, collateral must presented by grounds motion, these two otherwise, filed before the court adjourns; he court can not con State, 64 sider them. Knight See Crim. Rep., S. 967; State, 60 Texas Crim. the authori Rep., 608, Probest v. cases. This can court, therefore, ties cited those consider this of facts on statement said two of said motion and grounds facts, statement that clearly appearing the court testimony, heard must as the conclude law that the court requires, overruled correctly motion on said grounds. decide, one other us question There to review and necessary is, that or not and conduct whether the acts of the county attorney presiding judge which were permitting questions asked the stand about when he was on former conviction for horse theft, This effecting credibility. is shown purpose hill of that shows after the exception, conclusion of direct examination as a witness in his behalf, own attor- desk their court’s invitation neys county approached them; out of the joined attorney hearing attorneys been convicted judge informed had horse theft than thirteen years prior more while he was a been boy, fully pardoned, exhibiting pardon papers his said former court, claimed conviction was not ad- because too remote and missible was when against that the court then because stated he boy pardon; thought former was too remote conviction proper jury. *10 the asked if he attorneys county attorney His would observe said the court and not to attempt of elicit said information ruling before The 'that county replied the he would not jury. attorney but conviction. into said inquire Thereupon attorneys moved the the attorney to instruct to ask county court not questions to elicit such him from so. prohibit doing information The court stated knew of no rule of law to so authorizing instruct the county motion, to attorney, and which he excepted. That all of .overruled out the this occurred of of hearing the jury; afterwards and while was testifying cross-examination, the county attorney, over asked him in objections, the presence the if it not jury was a fact that he been convicted for horse theft in that court, his grounds stated, as above objection being and that it was highly prejudicial case. The at the to his court time made no Before ruling. the ques- answered tion was and the court ruled, the the county attorney asked y. 1918.] 61 clerk of the deputy court the minute bring book showing con- viction, to which it objected because was improper, prejudicial too remote and still the court made no After ruling. the cleric said minute book into brought the court-room in the presence the jury book was passed and after it him- judge, reading self, he stated that the defendant’s objections to the effect that said conviction was too remote, were well taken it, sustained would not said book permit in evidence would not require appellant answer. The court instructed thereupon not to consider what had just occurred in their presence. We above sub- given in stance full court, of said bill. allowing it qualified stating, “The testimony jurors the motion for new trial shows that this matter had no on them effect not at the trial know defendant had been to ified was accepted and filed This bill pen.” qual- thus and is by appellant bill presenting matter to this court for review. held in This has never have been any find, court case we after able search, that diligent the most conviction for a previous felony witness, witness, an when he makes himself a or appellant, be when such conviction can not was proven had thirteen or less years been times, cases, theretofore. It has and in many held that many been a conviction has number of that it great years is too remote admitted, admitted, should not and if and it is of such great it should cause a reversal. We age, are not all review undertaking but will cases, cite some of most recent ones and all that we State, have been to find directly point. able In the case Bowers v. 284, held, 71 court first Rep., S. a conviction occurring before the trial was eighteen years admissible for effecting purpose witness, of the credibility stating: “The of time lapse since commission crime could objection admissibility However, its might weight.” rehearing case, that fifteen too years held seventeen was remote was admissible. v. and that evidence such conviction In Dyer 413; 456; State, Crim. S. W. Ware v. 49 Texas State, Rep., 77 Rep., State, State, Rep., 538, 54 Texas Crim. Hanks v. 55 Texas Winn v. remote. 451, twenty years each case held too Rep., Crim. State, 802, 85 held too re twenty-five years v. S. W.
Wesley Rep., State, 196, mote. In White v. Rep., twenty-four years Crim. 389, held State, too remote. In Brown v. 56 Texas Crim. Rep., State, 126, State, v. 55 Texas Crim. and White Bogus Rep., Texas Crim. fifteen held in the 196, years was too remote. Also Rep., case, Winn in addition to supra, holding years, twenty-one twenty also held that fourteen was too remote. But- in the recent case years Oats v. 67 Texas Crim. S. W. Rep., held that nineteen in that too years and twelve case was not *11 under above, remote the circumstances that, of case. So as stated know we no decision in State this which has held thirteen years Beports. {June, Criminal
without
anything else
circumstances
or
being stated
shown is of itself
remote.
is stated
too
The true rule
in the Winn and
to
cases,
Oats
this
supra,
effect:
this
“Testimony
-character after
should not
been introduced
long lapse
years
have
where there was
that defendant
in the record to show
has
nothing
not reformed.
In
not
words, the law will
indiscretions of witness
permit
early
to be
brought into
to besmirch
requisition
becloud his subsequent
life. To do
as
so,
Greenleaf,
expressed by Judge
would be to'preclude
any
chance of a reform
counsel to
possible
enable State’s
misdeeds of a
useful life to
introduced
parade
early
subsequently
to
becloud
discredit the
useful
life.”
subsequently honorable and
that while
So
this court has
heretofore
case that thir-
never
held
any
remote,
teen
in and of itself was too
-.the
years
yet, applying
principle
heretofore announced
case,
to
facts of this
and this bill
showing
bojq
former conviction of
occurred while he was a
the appellant
as the
shows
years old,
record
about
eighteen
being nothing
there
reformed,
this record
and espe-
or bill
show that
had not
to_
as
that his
he had been
the court below
held
cially
correctly
pardoned,
credibility.
former conviction
inadmissible to affect his
effect
in error when
stated
clearly
the court
But
to
or instruct
authority
county
require
law giving
rule of
conviction.
the. former
The court
ask
about
to
not-
attorney
to do so
it was without doubt
but
authority
had the power
not only
instructed
not
should he have
and required
so,
only
do
to
duty
should
used
but he
have
not to ask said
attorney
questions,
county
instructions.
if under
And
the court
enforce
power
whole
and asked or at-
still
attorney
persisted
the county
such circumstances
should
the court
have inflicted such
ask
question,
such
tempted
him,
as would
deter
severe punishment
immediate
guilty,
to desist.
however
Appellants,
in future
officer
other prosecuting
right
impartial
have
a fair
charged,
crime
whatever
and the
is the
duty
and it
right
trial and
is not admitted
evidence
improper
to see
officers
prosecuting
introduced.
to be
attempted
593, 146 W.
S.
65 Texas Crim. Rep.,
Sweeney
case
In the
authorities
and cited
question
reviewed
recently
we
to elicit
evi
improper
asking,
improper questions
that the
effect
on that
this court
require
alone,
ordinarily
not sufficient
dence
cases, require
in some
might,
Such questions
case.
account to reverse
.suffi
are
this, however,
opinion
In
a reversal.
stated
As
case.
reverse this
court to
or require
authorize
cient
con
formér
that evidence
held
before
had never
above, this court
the pur
was not admissible
before
thirteen
viction occurring
addition, as
himself.
or the appellant
a witness
pose
impeaching
sustained,
objections
at last
the court
bill,
shown
there,
shown by
then-
specifically
Also he
testimony.
what had occurred thereabouts
consider
not to
bill, instructed
*12
y. The
1913.]
63
in addition,
And still
in
hill,
in their
presence.
allowing
qualified
that in
hearing
stating
jurors on
motion
by
it was
for new trial
shown that this matter had no effect on them and
at the
trial
know defendant had been convicted.
Appellant
this bill and
accepted
filed
is the basis
complained
Besides,
error now.
bill,
otherwise,
nor
shows how or in what
way appellant
prejudiced thereby. The mere
statement
the bill that it was prejudicial, stating how or
what
does not
way,
of itself establish any prejudice.
In
cases this
many
court has held that where even
has
illegal evidence
been admitted and
then withdrawn
the court
that no reversible error is committed.
State,
Roberts v.
48 Texas
210;
State,
Crim. Rep.,
Sutton v.
2 Texas
Crim.
342;
App.,
Morgan
State,
v.
31
Crim.
1;
v.
Rep., Miller
State, 31 Texas Crim.
609;
Rep.,
State,
7;
Jones v.
33 Texas Crim. Rep.,
State,
Robinson v.
869;
S. W. Rep.,
State,
Trotter v.
37 Texas Crim.
Rep., 468; Hatcher
State,
v.
43 Texas Crim.
237. “Admissions
Rep.,
of illegal
testimony will not
error,
constitute reversible
unless
injury
shown or
made
reasonably
to appear.”
State,
v.
Hooper
Texas Crim.
614.
App.,
our
opinion,
on this
whole
question,
while the action of the county
and trial
attorney
judge
clearly
wrong,
is not of sufficient
gravity
court to reverse.
require
Huggins
State,
v.
Affirmed. Judge. HARPER, Under the circumstances of this am will case I to concur in the but do not ing I concur in that opinion, part wherein it is opinion said that this court never has held thirteen or less would too be remote show former conviction. think the I trend all view, decisions are to that contrary our and individually I am of the that unless other evidence opinion a con showing acts, of criminal a conviction more than seven tinuity years prior offense commission trial which he is then on be would remote, should not admitted. too be Judge. Presiding
DAVIDSON, The useof conviction is for prior and is should be based impeachment, the idea that the con victed is or be This must may party corrupt. depend to- some upon, extent, conduct life of the shown subsequent party. Nothing would the witness be credible. some contrary Unless presumed shows to the thing should not overturned contrary presumption would conviction of remote date. This previous remoteness dis somewhat depend Usually conduct. I upon subsequent posed agree with as to number of I am not Judge Harper years, an iron prepared down bound rule as to date. I think lay questions Beports. Criminal 71 Texas are set forth sufficiently require the bills exception
presented consideration. June 1913.—Beporter.] denied
[Behearing *13 Trinkle R. C. Decided June 1913.
No. 2516. of. —Perjury—Indictment—Sufficiency 1. upon which involved was based facts a material the indictment Where intoxicating liquors being jury with reference to grand before the stored inquiry house, falsely, same was swore the sufficient. certain —Same—Insufficiency of Evidence. 2. the Where, upon perjury, the evidence was insufficient to trial of sustain conviction, must be reversed' the remanded. judgment cause Liquor. —Same—Evidence—Shipment 3. intoxicating storing liquors, Upon trial reference to perjury shipment liquor showing certain notice
evidence defendant of receipt been admitted. thereof should District Tried Appeal Upshur. Court below before the B. Hon. Simpson. two'
Appeal from a conviction perjury; penalty, years imprison- ment in the penitentiary. states case. opinion brief for appellant.
No file Lanc, Attorney-General, C. E. Assistant the State. Appellant was HARPER, convicted/of prosecuted per Judge. at two confinement the State assessed punishment jury penitentiary. of grounds, the indictment on a number motion to quash
Appellant’s taken. If vio- grand jury investigating are well none which of intoxicating liquors the sale storing prohibiting lations of law had re- whether or not certain persons a material inquiry it would be Mr. rented it in by beer and stored a house ceived fifteen barrels beer on much had received Trinkle, he knew that person and if house, answered grand and stored 30th May day house, in his and stored been received no such liquor jury and should be sus- facts could indictment based perjury those in so doing. court did err and the tained sum- witnesses that appellant two credible The State proved The substance sworn and testified. duly grand jury, moned before B. C. is stated Mr. Buie before grand of his language: following