King v. State , 95 Tex. Crim. 93 ( 1922 )

In passing upon questions raised and presented before it this court is compelled to take the record as it is made and if there be matters of ambiguity we endeavor to ascertain from the record, if we can, what the truth of the matter complained of is. Appellant renews his complaint of the admission of the testimony of State witness Hale complained of in bill of exceptions No. 3. As sustaining the proposition that it is not necessary to make a motion to exclude that part of the answer held by us not to be responsive to the question, appellant cites Barnard v. State, 73 S.W. Rep. 957. The facts are very meagerly stated in said opinion. If it reflects the admission of testimony without objection, and states with reference thereto the rule invoked by appellant, it is unsound and would not be followed by us. If the testimony referred to was admitted over proper objection, the bill of exceptions referred to in that opinion would be good without motion to strike out. A review again of the bill of exceptions under consideration shows that said witness on his direct examination was asked by the State if the defendant borrowed his car to go to Breckenridge. This was all that was asked. It is true that the bill of exceptions states that appellant objected to the question and answer, but it is also true that the bill further states that the objection being overruled, the witness proceeded to answer the inquiry as follows, etc. Manifestly the objection if made as now contended for by appellant, viz: to both the question and answer, before any answer was given, could contemplate but an objection to an answer responsive to the question. The question asked was not objectionable, and a fair answer thereto would likewise be not open to an objection. The witness answered the question, stating that he did borrow the defendant's car, but then proceeded to say further that the next day the defendant gave him a pint of whisky for the use of his car. The bill of exceptions then states: "To the action and ruling of the court the defendant excepted." The court ruled on the matter before him, which was appellant's objection to the question as asked. We know of no rule or authority allowing the appellant who has made an objection to a question, which is answered and in addition thereto something is injected which is not responsive, to sit silently by without making any effort to rid the record of the matter not so responsive. Jones on Evidence states the rule thus:

"It sometimes happens that answers are made which are not responsive to questions unobjectionable in themselves or that improper testimony is volunteered in which there is no opportunity to object in advance. In such cases the proper remedy is to move promptly to strike out the objectionable testimony."

In Underhill on Criminal Evidence, Sec. 216, appears the following:

"If the answer given is so irresponsive that it wholly or in part fails to convey all the facts which were required, or if it states facts or opinions not required, it may be stricken out on motion as far as it is not responsive, and the refusal of this motion when seasonable objection is made by the accused is reversible error."

See Rice on Evidence, Vol. 3, pp. 414-420. Appellant having failed to move to strike out the irresponsive evidence, can not now take refuge behind the proposition that he objected to the question and its answer.

With reference to appellant's bill of exceptions No 6, which he insists we should have considered, we again state that same was in question and answer form, and we call attention to the language of Article 846 of our Code of Criminal Procedure, which in express terms forbids the carrying into the statement of facts and bills of exception by the stenographer of questions and answers except when in the opinion of the trial judge it is necessary in order to make plainer the issue to which same relates. There is no such statement of the trial judge appended to said bill of exceptions from which we may learn that it was necessary to present the questions and answers in order that this court might comprehend the exact situation.

Relative to the contention that appellant objected to the testimony of witness Hale as to other transactions as set out in bill of exceptions No. 7, in our former opinion we quoted all the direct testimony of said witness Hale, an examination of which reveals the fact that there was no statement therein that appellant gave him a pint of whisky, or any amount of whisky, for the use of his car. When the case was originally examined and this bill of exceptions was considered, it was noted that nothing in the bill of exceptions showed whether the testimony was given on direct or cross-examination. In such case, being loath to decline to consider the bill of exceptions, we examined the statement of facts and found that only in appellant's cross-examination of said witness was the fact brought out that appellant gave him the quart of whisky for the use of his car. Such being the condition of the record, this court was justified in declining to give that weight to the testimony, which appellant insisted same should receive.

On the point of the materiality of such testimony, we observe that appellant was given the lowest penalty. This would indicate that the jury were in nowise prejudiced against him by the admission in evidence of such testimony. He was charged with the direct sale of liquor to Abb Demus and this witness testified positively for the State that he purchased liquor from the appellant. For the defense, character witnesses were introduced and the proprietor of the house at which State witness Demus said he bought the liquor in question, and also a party whom Demus said was present when the sale was made. Demus said the liquor was bought at John Smith's house at a party given there in January. John Smith testified for the defense that he gave no party at his house in January but did give one in the early part of February and in the latter part of December. His evidence as to how he fixed these dates was such as that the jury might have discredited same. The defense witness who was claimed by Demus to be present when the sale was made by appellant, had been charged with selling liquor to Demus himself, and was a nephew of the proprietor of the house where the sale was alleged to have taken place. There seems no possibility of the jury being confused as to which case they were trying, and there being no direct denial of guilt we can not easily perceive any issue in the case which might have on the part of appellant, and the verdict being for the lowest penalty, been affected by the testimony so strenuously objected to, even if it had been brought out by the State.

Being of opinion that the case was correctly decided, appellant's motion for rehearing is overruled.

Overruled.