Girvin v. State , 112 Tex. Crim. 355 ( 1928 )

Offense, felony theft; penalty, five years in the penitentiary.

Witness Roy Porter had an automobile stolen from him and a short time thereafter the car was found in possession of appellant and identified by its number. When found in possession of the car by the Sheriff and asked if he claimed the car, he answered that he did and presented a bill of sale to same. This testimony was objected to because given while the appellant was under arrest. The facts show that it was made contemporaneously with his arrest at a time when his possession was first being directly challenged and was admissible against him under the uniform holdings of this Court. Ward v. State, 41 Tex. 612. Hodge v. State, 41 Tex.Crim. Rep.. Jones v. State, 60 Tex.Crim. Rep.. For a full collation of authorities, see Branch's P. C., P. 1333.

Objection was made to the testimony of Roy Porter, owner of the car, because it affirmatively appeared that a guardian had been appointed to handle his finances under a judgment of insanity made and entered nearly two years previous to the time he testified. Under the terms of Art. 708 (1), C. C. P., all persons are competent to testify in criminal cases except insane persons who are in an insane condition of mind at the time when they are offered as witnesses, or who were in that condition when the events happened of which they are called to testify. We see nothing in the testimony of the witness or in the circumstances of this case that points in any degree to his insanity. It has been said: "That there exists an unvacated judgment, adjudging the offered witness a lunatic, will not suffice to reject his testimony." Nations v. State, 91 Tex. Crim. 114. See also Singleton v. State, 57 Tex. Crim. 560. Appellant failed to show, as was his duty, that the witness was either insane when he was called as a witness or was such when the event happened about which he was called upon to give testimony and under such circumstances the action of the Court was proper. Batterton v. State, 52 Tex.Crim. Rep..

Motion was made in the trial court by appellant to pass his case until a future day of the term of court because there had been tried in the District Court of Tom Green County on the day previous the case of the State of Texas v. Henry Walker, in which testimony was brought out tending to connect appellant with the offense charged against the said Henry Walker as principal in the theft of an automobile in Tom Green County. The record shows that the jurors who tried Walker were stood aside and not placed on the panel of the jury called in the instant case. It further shows that the jurors on the panel for the week were examined and those who testified they heard any part of the Walker trial stated under oath that they had no opinion and had formed no opinion from what they had heard. It does not appear that the issues were the same or the witnesses the same in the two cases. It has been held that jurors are not disqualified simply because they have convicted another person for a different transaction, though the same witness was prosecutor in both cases. Irvine v. State, 55 Tex. Crim. 349. The Court qualifies these bills by the statement that each of the jurors testified under oath that he would not in any way be influenced by what he heard in the Walker case. If these jurors had testified they had an opinion from hearing the witnesses in the former case upon the same issue to be tried in this case, each of them so testifying would have been disqualified, even though they stated same would not have influenced them. Branch's P. C., Sections 558 and 559. However, as before stated, these jurors testified they had no such opinion and even if they had, the issues were not shown to have been the same and in no instance was one of these jurors shown to have been forced upon the appellant. None of them appear to have sat as jurors in the trial of appellant's case. If there was error in the Court's action, it is one about which the appellant could not complain, as no probability of injury is shown in the record. This Court does not reverse for errors where there is no affirmative showing of any injury or probability of such, except in those cases where that duty has been laid upon us by the terms of the constitution or statute. It is an entirely erroneous conception that we will reverse for every mistake of law made by the trial court. The many and constant mistakes made by the agencies of the law would compel us to reverse almost every case if such were the rule. In this case there could not be even a probability of injury to appellant unless there was some affirmative showing that an undesirable juror was forced upon him and sat in the trial of his case. Because there is constant and earnest insistance that we reverse for errors of the trial court unaccompanied by any showing of probability of injury, we desire to call the attention of the bench and bar to some of the authorities which conclusively show that it has never been the policy of this Court to reverse on purely technical grounds which involve no material right of the accused. Ballew v. State, 36 Tex. 101; Matthews v. State. 6 Tex.Crim. App. 40; Logan v. State, 17 Tex.Crim. App. 57; Pocket v. State, 5 Tex.Crim. App, 565; Williams v. State, 48 S.W. 515; May v. State,51 S.W. 242; Bovce v. State, 66 S.W. 568; Hofheintz v. State, 45 Tex.Crim. Rep.; De Los Santos v. State, 146 S.W. 919; Ragsdale v. State, 61 Tex.Crim. Rep.; Greenwood v. State, 99 Tex.Crim. Rep.; Newman v. State, 99 Tex. Crim. 363.

Believing the evidence sufficient and there being no errors in the record, the judgment is affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.