Holdbrook v. State (2 S.W.2d 437, 1928)

MARTIN, J.

Offense, the unlawful sale of intoxicating liquor; .penalty, one year in the penitentiary.

Many bills of exception are shown in the record, but they raise only two questions worthy of discussion.

The state’s evidence shows that appellant sold to C. M. Woodard a half pint of whisky in a domino hall in Parmersville. Appellant denied this on the trial, and was asked by the county attorney:

“Q. Didn’t you tell me that if you have sold him any whisky [meaning to C. M. Woodard] you couldn’t remember it? A. I told you I didn’t sell him any.

“Q. I just asked you if you denied making that statement to me. Do you deny that you were in my office yesterday morning and made the statement to me, Tf I ever sold Mr. C. M. Woodard any whisky, I don’t remember it.’ Did you make that statement to me? A. Well, I am not going to say that I did or did not, but I tell you emphatically I did not.

“Q. If you had ever sold any whisky to Mr. Woodard, would you come here and admit it if you knew it would send you to the penitentiary? A. I believe I would.

“Q. Is that as far as you will go on that you believe you will? A. Well, I have never had any experience on that; I don’t know hardly what a man will do, but I believe I would.” ,

The examination stopped with this, and no impeaching evidence was used by the state to contradict the above testimony of appellant. The evidence shows that appellant had been a resident of Collin county almost all of his life and was not a stranger in the county, though a stranger to the jurors who tried his case.

The appellant contends that the court erred in refusing to permit him to prove by various witnesses that appellant’s general reputation for truth and veracity in Collin county was good, and that the above constituted such an attack upon the witness as authorized proof of his general reputation for truth and veracity. The cross-examination was not such as amounted to an attack upon his credibility as a witness, or such as necessarily branded him as a falsifier.

The rule is stated by Mr. Underhill as follows:

“It is now held almost universally that evidence, to show that the reputation of the witness for veracity is good may be introduced whenever the evidence of the witness has been impeached in any way, whether by his contradictory declarations or by a direct attack upon his character. But evidence that a witness enjoys the reputation for truthfulness is not receivable to strengthen his testimony merely because he has been contradicted by an adverse witness, or because there is a mere conflict in the testimony, or because he has been shaken or confused on cross-examination. But it has been held in Texas that a witness for the prosecution, who had been subjected to .a most searching cross-examination having a strong tendency to discredit him before the jury, might have his credibility sustained by the introduction on the part of the state of proof that his reputation for truth and veracity was good, though his character had not been directly attacked and no contradiction had been shown.” Underhill’s Criminal Evidence, par. 385.

Judge Davidson, in tlie case of Warren v. State, 51 Tex. Cr. R. 598, 103 S. W. 888, uses the following language:

“The rule will not authorize the introduction of testimony to sustain a witness because of a cross-examination. ⅜ * * The exception to this rule, whereupon a rigid cross-examination, which is intended to attack the credibility of the witness and show that he is lying, is in regard to strangers when used as witnesses, as in Phillips v. State, 19 Tex. App. 158.”

Similar holding was made by Presiding Judge Morrow in the Lewellen Case, 90 Tex. Or. R. 588, 236 S. W. 987. In our opinion, the court’s ruling was correct under the eir-•eumstances above set out.

Yarious complaints and exceptions were made to the language used by the attorneys for the state: in their arguments to the jury. Without going into a tedious recital. of all of these, the following will illustrate the general nature of appellant’s contention: While the county attorney was making, his closing argument to the jury, he used the following language:

“The evidence shows that he [meaning C. M. Woodard] was subpoensed before the grand jury and was forced to tell what he detailed here on the stand.”

There is no evidence that Woodard was forced to testify.

Appellant’s attorney objected to this argument as well as various other arguments shown in his bills of exception, and the court in each instance instructed the jury verbally and in writing to not consider same. The language of these arguments was not of that inflammatory character which a written instruction to disregard would,not cure. Some latitude must be allowed for the zeal of counsel. Every ease where improper argument is made does not merit reversal. If so, very few cases perhaps could be affirmed.

The following authorities will illustrate the rule in Texas: Jackson v. State, 100 Tex. Cr. R. 528, 272 S. W. 139; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; Anderson v. State, 106 Tex. Cr. R. 305, 292 S. W. 219.

The evidence is sufficient to support the verdict of guilty Appellant received the lowest penalty, and we are not able to believe that any of the arguments referred to affected appellant injuriously.

Finding no errors which justify a reversal, the judgment of the trial court is affirmed.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

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On Motion for Rehearing.

LATTIMORE, J.

Appellant files a; motion showing extensive research and care in its preparation. He presents only two propositions, viz., that the court should have let him prove his good reputation, and, second, that the argument used by the state’s attorney was improper and prejudicial. A review of the authorities cited in the motion, together with a re-examination of the record, fails to convince us of the error ,of our former opinion. The matter relied upon as giving appellant the right to prove his reputation is set out fully in the original opinion. Without extended discussion, we are of opinion that, if appellant while a witness had admitted, in answer to the county attorney’s-question, that he did tell the county attorney that if he had sold any liquor to Woodard he could not - remember it, this would not have afforded him any ground for attempting to prove his reputation. We are entirely unable to see how 'the fact that he would neither affirm nor deny having made the statement to the county attorney gives him any such-right. In the able motion for rehearing, appellant’s counsel ingeniously argues matters imaginative into the jury’s possible construction of the questions, which we do not think at all involved. The authorities, cited in the motion present cases where the accused was a stranger, and where the cross-examination was very much more rigid, apparently, than here. The accused could hardly he called a stranger. He had lived in Collin county two years next before the trial, and had been a long time resident of the county prior to that time. The bills of exception relating to the argument complained of are illustrated by the one set out in- the original opinion. The prosecuting witness testified that he was before the grand jury, and that if he had not been before the grand jury he would not be here before the trial court. In his argument to the jury the state’s counsel referred to said witness as having been-forced to go before the grand jury to testify. The court, each time this occurred, instructed the jury not to consider it and told counsel for the state to omit reference to the use. of any force. We are unable to perceive _ the harmful character of such argument, but the learned trial judge, out of caution, instructed the jury not to pay any attention to it. We are not led to believe that the matter comes within any of the authorities which hold that, if'the matter be of such prejudicial character as that an instruction not to consider same could not remove from the minds of the jury the evil effect of the argument, the case should be reversed.

Being unable to agree with the contentions made by appellant, the motion for rehearing will be overruled.