Ingram v. State (78 Tex. Crim. 559, 1916)

HARPER, Judge.

Appellant was convicted of murder and his punishment assessed at sixty years confinement in the State penitentiary.

In this case the State was seeking to corroborate the testimony of Mrs. L. W. Ward, the wife of deceased, the State knowing her testimony would place her in a position to be an accomplice to the crime, and knew she would testify to adulterous relations existing between herself and appellant, the State relying on this to snow a motive for appellant to kill deceased, and to corroborate her, the State was adducing testimony that he was seen at or near her house frequently, and that he telephoned Mrs. Ward frequently. While making this proof the State called Charlie Smith as a witness and proved by him that appellant frequently used the telephone in the sheriff’s office and talked a great length of time. That he, Smith, 'had ascertained Mrs. Ward’s phone number was 409, and when appellant was talking over the sheriff’s phone he went to another phone and called for 409, and found that it was busy. The State also proved that appellant used this .phone so frequently and for so great a length of time, the sheriff had to object to appellant using the phone. At the time this testimony was offered appellant had not taken the stand and admitted the adulterous relations and had not admitted he talked several times a day— almost every day — with Mrs. Ward over the telephone. As said by this court in the Noftsinger case, 7 Texas Crim, App., 307, in a case depending on circumstantial evidence the mind seeks to explore every source from which any light, however feeble, may be derived. In this case, not knowing that appellant would testify, and he could not be compelled to do so, the State knew it must rely on circumstantial evidence to corroborate the testimony of Mrs. Ward as .to adulterous relations, and the court did not err in admitting the testimony. If this were not true, after appellant himself testified to.the adulterous relations and that he frequently talked to Mrs. Ward over the telephone— almost every day — the bills would not present error.

In the next bill it is shown that defendant called Leonard Ward, a son of deceased, as a witness and the record discloses that:

“When this witness was pnt on the stand and before he was asked any questions, the jury having been retired, the district attorney made the following statement:

“£We anticipate that they put this witness on for the purpose of laying a predicate for impeachment of him, this is the young man, son of the deceased, and we want to state to them so that they can not claim surprise that this young man testified at the inquest which was held the night the body left here, that he did not make these statements and that he did not know anything about the pistol and we want to apprise them of the fact so that they can not claim surprise, and we tender them the evidence which they had at"the habeas corpus, and they had this sworn testimony of the inquest and they can not claim surprise when they ask him these questions.’

“My name is Leonard Ward. I live at Detroit, Texas. I used to-live here in Cameron. I will be fourteen years old in August. I am the son of L. W. Ward, Jr., and his wife, Vasti Ward. I was living in Cameron at the time of the death of my father. I was at the house the night that he died. I was asleep at the time, but I got up. I was in a different room. The pistol shot woke me up, and I came'into the room. There was a light in the room when I came in. My mother had lighted the lamp. When I went in the room, I saw papa laying on the bed. I saw my mother in there. There was nobody else. My mother said he had shot himself. I never saw the pistol in my father’s hand until after Dr. Denson came.. It was only a short' while before he got there. When he came he found the pistol in his han¿. He took it off and laid it on the bed. I broke it open and the cartridges fell out on the bed. There were five of the cartridges. It was not a sixshooter. It was size .38, and shot five cartridges. I think I would know the pistol if I saw it. This is it. (38 S. & W.) I do not know whose pistol it was. I never did see it until that night. I don’t know whether it was my mother’s pistol or not. I never saw it until that night. I don’t know whether it was her pistol and whether she kept it in her trunk or not. I never saw it until that night. I did not trim one of the cartridges that went into the pistol. I never did see it. Mr. Story lives just across the fence from us. We lived on the same block, just a fence between us.' It is about fifty yards. Dr. Denson got there in just a few minutes. Mr. Story got there a little while after Dr. John got thei%. A minute or two after Dr. John got there he sent me after Mr. Story. I called for Mr. Story after I got to his house. I told him papa had shot himself. I did not show him the bullets when I went in there. I did not have them there. I did not show Mr. Story the bullets and tell him that I had trimmed one of them and that was the one that my father was killed with. I did not break the pistol until after he came. I did not say I trimmed the cartridge because I never did see any .38 cartridges there. I did not tell him that I had trimmed one of the cartridges and that that ,was the bullet that killed my father. I did not tell him at that time or at any other time. I went into the house at Mr. Story’s. He got up and lighted a fire and let me in. I did not tell him that my father had shot himself with my mother’s pistol. I did not say whose it was. I did not state that he had shot himself with my mother’s pistol that she kept in her trunk. I did not say where my father got the pistol because I did not know whose it was. I did not tell him that I did not know how my father got the pistol out of the trunk. I did not tell him that the cartridge I trimmed was the one that killed my father. Mr. Story went back to our house with me. After we got back to the house Mr. Quinn Walker came over there. I don’t know how long before he came. He was a pretty close neighbor, just the other side of Mr. Story’-s. He got there five or ten minutes after Mr. Story came.”

The State did not cross-examine the witness further than to prove by him that he was fourteen years old, and had two sisters and a brother. After the witness had testified as above at the instance of defendant he sought to lay predicates to impeach the witness by asking him if he had not told Mr. Walker and others that his father had shot himself with his mother’s pistol. The court sustained the objection of the State and would not allow appellant to lay predicates to impeach the witness, and sustained the objections of the State when appellant offered witnesses to impeach the witness as to the question above propounded. In this 'the court did not err, as it is made to appear that the witness had testified at the inquest and by his testimony 'it was made plain that defendant could not expect the witness to testify to any such state of facts as he had testified otherwise at the inquest and the inquest papers had been tendered appellant’s counsel before he propounded any questions to the witness, and the witness had been called to< lay predicates to secure the admission of testimony otherwise inadmissible, and which could be admitted only to impeach him. One can not himself call a witness knowing or being informed that he would not so testify and lay predicates to impeach his own witness and thus secure the admission of testimony otherwise inadmissible. Under the common law one was not permitted to impeach his own witness, as he was supposed to vouch for the truthfulness of a witness called by him but our statute has slightly modified that rule (art. 815, C. C. P.). Appellant can not claim that he was surprised at the testimony of the witness — that he thought he could prove by the witness that the pistol founcl by deceased was his mother’s pistol. If the witness had so told the witnesses named by appellant he knew or could have known by reading the testimony when tendered him, that the witness had sworn at the coroner’s inquest that it was not his mother’s nor his father’s pistol. So it is manifest that the whole purpose of appellant in placing the witness on the stand was to lay a predicate upon which he could impeach the witness and thus get testimony admitted which was otherwise inadmissible. The rule is clearly stated in Branch’s Criminal Law, section 866, when one can and when one can not impeach his own witness. Scott v. State, 20 S. W. Rep., 549, is particularly in point. The authorities cited by appellant correctly hold, under our statute, when one is surprised at the testimony of the witness, and the witness testifies to facts injurious to his cause, he then may show prior statements different from those which he testifies on the trial, and for this Teason there was no error in admitting the statement Cozier Walker made before the grand jury. Had appellant not been informed prior to the time he called the witness Leonard Ward and propounded to him the questions he did, that the witness would not so testify, and had testified to a different state of facts at the coroner’s inquest, he probably could claim that he was surprised at the testimony of the witness. But the bill and record discloses that he was given full information that the witness would not so testify, therefore there was no error in the ruling of the court.

The deceased was found in bed in a dying condition about 1 o’clock on the night of January 23, and subsequently his father shipped the body to Detroit for burial. Mrs. Ward, wife of deceased, had a sister living at Temple, Miss Minnie Mayse, and on making its case the State proved by Miss Mayse that on February 5th appellant came to Temple and told her the father of deceased had come back to Cameron, and was having the household goods shipped, to Detroit, and that Mr. Ward, Sr., was blaming Mrs. Ward, Jr. (the wife of deceased) with the killing of the deceased, and that he, appellant, did not think Mrs. Ward did the killing. After this appellant placed Will Yates on the stand and offered to and could have proven by the witness that he told appellant that he had heard it rumored on the streets of Cameron that the wife of deceased was accused and suspected of murdering her husband. The witness would not have stated that he had heard Mr. Ward say so, nor that he so told appellant, nor would he have stated that he had heard a rumor that Mr. Ward accused his daughter-in-law of murder, nor did he so tell appellant. So the statement made by the accused to Miss Mayse, and the statement he could have proven was made to him by Will Yates were wholly different statements, and the court did not err in his ruling. If appellant could have proven by any witness that he had been told Mr. Ward was accusing his daughter-in-law of having committed the crime, such testimony should have been admitted, and this is ¿11 the authorities cited by appellant hold. But as the testimony of Will Yates would furnish no basis for the statement made by appellant to Miss Mayse, the ruling of the court presents no error.

After defendant had called Leonard Ward as a witness, and said witness had failed to testify to facts defendant desired, he, defendant, called Leonard Storey to testify as to what Leonard Ward had told him immediately after his father, L. W. Ward, was shot. And Leonard Storey testified that he was told by Leonard Ward that his father had killed' himself with his mother’s pistol; that he had cut the nose off of one of the bullets in the pistol, and this was the one that had killed his father. The State rigidly cross-examined the witness Leonard Storey and asked him if he had testified to such facts when before the grand jury, and the witness answered that no question had been propounded to him calling for such information. After this cross-examination the State'offered no proof as to wbat bis testimony before the grand jury was, but stopped with the cross-examination of the witness, and in deference to appellant’s contention, it may be stated the cross-examination was such as would probably affect the weight the jury would give to the testimony of Leonard Storey on direct examination, but this will not authorize the introduction of testimony in support of the witness where he resided in and was well known in the county in which the trial was had. Had the State offered any proof to contradict or impeach the testimony of the witness, the testimony of Allen Hooks, and others would have been admissible as to what Storey had told them, but as the State contented itself with a rigid cross-examination and stopped there, the witness Storey could not be supported by showing that he had made similar statements to others as to the same facts he testified to on the trial. In McCue v. State, 75 Texas Crim. Rep., 137, 170 S. W. Rep., 280, et seq., we discussed the question of when, a witness can and can not be supported, citing a great many authorities, and there held that a witness could not be supported when the cross-examination went only to test the truthfulness of the testimony, and he was attacked in no other way. Cross-examination is intended to test the truthfulness of the evidence given on direct examination, and to say, because a witness had been cross-examined in a manner to weaken the weight of his testimony, he could be supported, would render a trial endless, and inject into every case testimony supporting each and every witness and cause a jury to lose sight of the main issue on trial. The same rule applies as to the effort to support the testimony of Mrs. Leonard Storey. The State introduced no testimony to impeach her.

The defendant on his direct examination stated he was an “Odd Fellow.” On cross-examination the State cross-examined him as to whether or not he was an Odd Fellow, and he answered that he had been. The State then asked him, “When were you expelled?” and appellant answered before objection could be made, “Since this has been against me.” As the court promptly sustained the objection when made, and the question of whether or not he was a member of the Odd Fellows Lodge had been injected into the ease on his direct examination by appellant, the bill presents no error. Had appellant not injected the matter into the case a different rule would prevail, but he having stated on direct examination he was an “Odd Fellow,” it was permissible for the State to ask him if he said he was an Odd Fellow, and to elicit a reply that he had been. It was improper to ask,