Mobley v. State , 89 Tex. Crim. 646 ( 1921 )

By a most vigorous motion for rehearing appellant complains of a number of matters as erroneous in our original opinion. It is insisted that we erred in looking to the statement of facts in aid of appellant's bill of exceptions No. 5 complaining of certain testimony stated to have been elicited from defense witness Robert Woodley on cross-examination. Said bill of exceptions was wholly insufficient and failed to state the facts and circumstances surrounding the giving of such evidence so that we might know from said bill what the exact statement of said witness was, and how same was elicited or made material, relevant and competent, or otherwise. Rather than reject the bill in the form it appeared in the record, we looked to the statement of facts to further investigate the matter. In doing this appellant contends we erred. Our views upon the duty of this court in such matters, are to some extent discussed by Presiding Judge MORROW in Plummer v. State, 86 Tex.Crim. Rep., 218 S.W. Rep., 501. We think we are compelled in every case to familiarize ourselves with the facts in order to fairly decide questions affecting the lives and liberties of the citizens whose cases are before us, and do not permit ourselves to be bound by such iron-clad rules in this regard, as we might. Had we so regarded our duty, we would not have given this bill consideration any further than to call attention to its defects. Appellant's bills of exception Nos. 5 and 6 were insufficient but we did discuss the matters therein stated and decided them as we think correctly.

We do not think we erred in holding that Mary Richardson might be asked on cross-examination if she had been married, the testimony showing that she was the mother of three children. In McCray v. State, 38 Tex.Crim. Rep., we quoted approvingly the following:

"As was said by CAMPBELL, J., in Wilbur v. Flood, 16 Michigan, 40-43 (cited in Thompson on Trials, p. 404): ``It has always been found necessary to allow the witnesses to be cross-examined, not only upon the facts involved in the issue, but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given, where circumstances seemed to justify it, in allowing a full inquiry into the history of witnesses, and into many other things tending to illustrate their true character. This may be useful in enabling the court or jury to comprehend just what sort of person they are called upon to believe, and such a knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract from them the whole truth on the merits. It can not be doubted that a previous criminal experience will depreciate the credit of a witness, to a greater or less extent, in the judgment of all persons, and there must be some means of reaching this history. The rules of law do not allow specific acts of misconduct, or specific facts of a disgraceful character, to be proved against a witness by others. . . . Unless the remedy is found in cross-examaination, it is practically of no account. It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. . . . We think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility. . . . He must be better acquainted than others with his own history, and is under no temptation to make his own case worse than truth will warrant. There can, with him, be no mistake of identity. If there are extenuating circumstances, no one else can so readily recall them. We think the case comes within the well-established rules of cross-examination, and that the few authorities which seem to doubt it have been misunderstood, or else have been based upon a fallacious course of reasoning, which would, in nine cases out of ten, prevent an honest witness from obtaining better credit than an abandoned ruffian.'"

The McCray case has been often cited with approval by this court. The argument stressed in appellant's brief that the moral turpitude which might attach to a white woman who was the mother of illegitimate children should not be imputed to one of color, might be used to a jury in rebutting the effect of such evidence, but could hardly be expected to affect the question of its admissibility.

Cundiff v. State, 88 Tex.Crim. Rep., 226 S.W. Rep., 412, is cited as holding contrary to our views that the trial court committed no error in rejecting the contents of appellant's discharge from the army, offered for the purpose of proving his good character and that he had not been convicted of any criminal offense while not a resident of Harrison county. An examination of the opinion in the Cundiff cases discloses that there was no statement of facts therein and said case was affirmed, the court discussing at some length the question of the right of the accused to testify to his own good reputation in various regards. The language of the opinion in that case was very guarded and went no further than to say that in a proper case, papers showing the service in the war and honorable discharge of the accused might be admissible. Such statement necessarily partook more or less of the character of dicta in view of the absence of the statement of facts. If a case were before the court in which one who had been over-seas in service until approximately the time of the commission of the offense and who was otherwise deprived of the opportunity of establishing that he had not been theretofore convicted of a felony, and it was shown that he was without power to prove by ordinary means his previous good character, we might be inclined to hold admissible such papers as a circumstance looking in that direction. We do not believe the case before us is a proper case for the introduction of such evidence. In People v. Eckman, 72 Cal. 582, the court held the contents of an army discharge inadmissible as affecting character. In the instant case while the facts showed appellant to have been in the army for a short time, according to his own testimony he got no further than Camp McArthur, and had been a resident of Harrison County all of his life. It was in testimony by the defense without contradiction by the State, that appellant had never been convicted of a felony, and that his reputation was good. We are of opinion that the rejection of said evidence was not error under the facts of this case.

Neither of the two physicians who exhumed the body of deceased said they had ever seen the order of the court directing such exhumation, or the application for such order. The record does not otherwise show that they had knowledge of the contents of said order or application. Dr. Hall testified that they were instructed to ascertain if the neck of deceased was broken and where she was shot. Who gave such instructions was not stated. Dr. Littlejohn in his testimony said nothing about any instructions from any source save that he was a member of a commission to exhume said body. Neither the application for the order to exhume, nor the order itself was admissible to impeach Dr. Hall because of his testimony that they did not examine the body for bruises, the record being bare of any showing of knowledge on the part of said physician of the contents of said application or order.

We have examined the motion complaining of our holding in regard to the charge of the trial court on manslaughter and think the contention without merit.

Being unable to conclude that we erred in our former disposition of the case, appellant's motion for rehearing is overruled.

Overruled.