Everett v. State , 122 Tex. Crim. 626 ( 1932 )

In the motion for rehearing, counsel for the appellant stresses the claim that the alleged improper comment of the judge trying the case discloses an imperative necessity for a reversal of the judgment of conviction. From the bill of exception, it is shown that, after sustaining the objection of state's counsel to certain questions propounded by appellant's counsel to the witness Rose, the judge made the following remark: "You may have your bill and stay off of that immaterial stuff."

Rose was one of the alleged persons robbed. He was called by the state as its first witness. On direct examination by the state, Rose testified that he was in the business of bootlegging in Dallas county; that he had been engaged in that business for three or four years; that he had been convicted of that offense in Dallas and had served a term in jail; that he had been convicted in Oklahoma for a like offense; that he did not recall having been convicted of any other felony. Similar testimony was given by the witness on cross-examination, as appears from both the statement of facts and the bill of exception.

On cross-examination, the witness Rose testified that he had formerly lived in Texas but had gone to Oklahoma when he was a small boy and lived there until he was grown. While there, he had been prosecuted for violating the law against the traffic in intoxicating liquors; that he had been twice convicted when he lived in Oklahoma and once convicted on a plea of guilty in the same state at the time he lived in Dallas, Texas; that in Dallas he had been convicted of a like offense, paid a fine and had served a jail sentence. He said, "I am in the bootlegging business in Dallas at the present time." He also testified on direct examination that he and his companions, McGowan and Adams, had, upon an agreement with Childress, brought from Dallas on the occasion of the alleged robbery five cases of whisky which they had undertaken to deliver for the sum of $90. It was shown by various witnesses that Rose and his companions brought a quantity of whisky to Ellis county on the occasion in question, and that Rose and his companions were dealers in whisky. That that was their occupation, and that they were engaged in it at the time of the transaction in question, was an uncontroverted fact.

The foregoing testimony of Rose was given in response to questions propounded by appellant's counsel, without the interposition of any objections by counsel for the state. After such testimony was given, and during the further cross-examination of Rose, certain questions were asked and certain action taken by court and counsel, which appears in the bill of exception as follows:

"Q. You were in that business up there, (Oklahoma)? A. Yes, sir.

"Q. Were you taking goods out of Dallas up to Oklahoma? (Objection by State sustained, exception by Defendant).

"Q. Are you in that business now? A. I am.

"Q. How long have you been in the bootlegging business in Texas? (Objection by State sustained, exception by defendant).

"Q. You used that place (Yarbrough's store) to carry on your business and take orders? A. That is right.

"Q. Did you keep liquor in that store? (Objection by State sustained, exception by defendant).

"Q. Where did you keep your wares? (Objection by State sustained, exception by defendant).

"Q. You have a big business? A. Not such a big business.

"Q. Enough to make a living? (Objection by State sustained, exception by defendant).

"Q. When you made this trade, where did you go to get the whisky? (Objection by State sustained, exception by defendant).

"Q. Was the whisky there at your home? (Objection by State sustained, exception by defendant).

"Q. Where were you when you started with that whisky in that car. (Objection by State sustained, exception by defendant) ?"

Counsel for the appellant then remarked: "We think it is right and proper to go into every detail with reference to this whisky, because the matter has been introduced by the State; he testified he came here to deliver it, and we have a right to ask where he got it."

The court then said: "You may have your bill and stay off that immaterial stuff."

We are unable to agree with the suggestion of the appellant that the words used by the court, namely, "and stay off of that immaterial stuff" were imputable to all of the cross-examination of the witness Rose. On the contrary, the application of the remarks could be justly made alone to the questions to which the objections were addressed and sustained as above set out. Many decisions are cited by the appellant as bearing upon his contention that the remark constituted a prohibited comment upon the weight of the evidence. In article 707, C. C. P., 1925, it is declared: "In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceedings previous to the return of a verdict, make any remark calculated to convey to the jury his opinion of the case."

On many occasions the court has been called upon to determine whether under a given state of facts there was a violation of the statutory rule announced and whether the remarks, though improper, were harmful.

In the case of English v. State, 85 Tex.Crim. Rep., in which there were remarks resulting in a reversal, the following statement is made: "It is not every comment, however, that requires reversal, for the reason that all comments are not harmful, and the question whether the judgment is to be reversed is determined, not upon the language used in making the comment, or the fact that the comment is made, but upon the consequences which probably result therefrom."

See, also, McCoy v. State, 108 Tex.Crim. Rep., 2 S.W.2d 242; Rodriguez v. State, 23 Texas App., 503; Clemmons v. State, 39 Tex.Crim. Rep., 45 S.W. 911. See, also, Ahlberg v. State, 88 Tex.Crim. Rep., 225 S.W. 253; Smith v. State, 81 Tex.Crim. Rep..

The cases cited by the appellant have been carefully examined. The case of Gribble v. State, 85 Tex. Crim. 52,210 S.W. 215, is stressed by the appellant as supporting his contention. The comment of the court had direct application to the evidence that was admitted before the jury. The vice in it was that it went to the jury with the opinion of the court that it was of little value. The court stated that it was a direct comment upon the weight of the evidence, calculated to convey to the jury the opinion of the court as to the merits of the case.

In the present matter, the court having sustained the objections to the questions propounded by appellant's counsel, as shown by the bill, the jurors were not aware of the answer expected, and therefore could not have been influenced by a comment of the judge upon the testimony.

In the case of Rodriguez v. State, 23 Texas App., 503, it was said: "The remarks of the judge objected to were made concerning testimony which was rejected when offered, and, this testimony not being before the jury, for their consideration, his remarks could have had no influence upon their minds, as we can preceive."

It is to be observed that in each of these questions the objection was sustained. The bill fails to state what answers were expected from the witness and what objections were made by the state. That a bill of exception so formed presents no matter demanding consideration is established by almost innumerable precedents. See Tex. Jur., vol. 4, p. 94, sec. 58, also p. 41; C. C. P., art. 667, and cases collated in Vernon's Ann. Tex. C. C. P., vol. 2, p. 355, note 16.

The cross-examination was manifestly for the purpose of showing that the witness Rose, by reason of the nefarious business in which he was engaged and the fact that he was a lawbreaker and had been often convicted of offenses against the liquor law, was unworthy of belief, and that his testimony given before the jury should not be accepted as true. It was made clear, both from the witness Rose and other witnesses for the state, and from the cross-examination of Rose by the appellant, that he was a confirmed criminal, and had long been engaged in and often convicted for violating the law. We are not prepared to say that in making the ruling in question the court abused his judicial discretion. If the remarks in any sense offended against the statutory injunction embraced in article 707, supra, it could not, without doing violence to the statute mentioned as it has been frequently interpreted, be regarded as justifying a reversal of the judgment.

In bill of exception No. 10, it appears that the appellant offered the testimony of the witness Billie Batchler, who was under indictment for the same offense as the appellant. Because of the indictment, the court refused to receive the testimony. Appellant took a bill of exception in which it is stated that he had reason to believe, and did believe, that the indictment against him was returned for the sole purpose of preventing the appellant and J. W. Cadle from using Batchler as a witness in their behalf. The motion to permit Batchler to testify is verified by the appellant. Without any contradiction of the affidavit of the appellant, the court declined to hear the testimony of Batchler. In qualifying the bill to the overruling of the motion, the court states: "The evidence in the case at the time Billie Batchler was offered by defendant as a witness had strongly raised the issue that said Batchler was an accomplice aside from the fact that he had been indicted by the grand jury for connection with the commission of the same offense for which defendant was being tried."

To this qualification there was no exception.

In Bill No. 11, it appears that in the motion for new trial is presented the same subject that was embraced in Bill No. 10. Batchler's testimony was again rejected upon the ground of his disqualification. Attached to the bill is a statement of the evidence which Batchler would have given. It covers a number of pages. However, a recital of it in detail is not practicable.

According to Batchler's statement, he went upon the invitation of Cadle to the underpass where the offense is charged to have been committed, and, while there, he saw and had some association with Childress, Everett and Cadle. After remaining there for some time, they returned to his home. While there, parties came in a car. The witness described their movements, including the statement that the parties had an interview with Childress. Batchler denied that Childress gave him any money. He said he knew that there was no hijacking or robbery done, and that "we are absolutely innocent of the charges brought against us." "I know, and so state upon oath, that no one was hijacked or robbed near the underpass on the date or night herein stated, while Jim Everett, J. W. Cadle and I were together, as herein shown." The witness had been a peace-officer for nine years, and bore a good reputation as a peaceable, quiet, and law-abiding citizen, and at the time of his indictment was a deputy sheriff of Ellis county and city marshal of the town of Ferris, Texas; that on the 5th of February Jim Everett, Cadle, and Childress were indicted, and the witness Batchler was not indicted until the 20th of February. Everett's trial was set for the 25th of February.

This court has many times declared in substance that a witness cannot, by the fraudulent act of the adversary, be disqualified for the purpose of preventing his testimony coming before the jury. See Doughty v. State, 18 Texas App., 179; Cundiff v. State, 86 Tex.Crim. Rep.; Ice v. State,84 Tex. Crim. 513. To obtain the benefit of the rule, there must be evidence supporting the alleged fraud. In the present case, the regularity of the grand jury which found the indictment against Batchler was not attacked; nor does it appear that there was evidence of vice on the face of the indictment. The apparently sufficient indictment carried with it the presumption of regularity. When Batchler was offered as a witness and his indictment for the same offense appeared, his disqualification as a witness for the appellant resulted from the statute, article 711, C. C. P., also P. C., article 82. There is no evidence to support the contention that the grand jury acted corruptly or without adequate testimony. To avoid the effect of the indictment disqualifying the witness and to overcome the presumption of regularity in finding the indictment, it was essential that the appellant's attack upon the indictment should be supported by evidence. The only evidence apparently presented was that which came in the motion for new trial, to which reference has been made above, and that consists of the statement of Batchler under oath, denying his guilt and the guilt of his alleged confederates, in which statement his association with the parties charged with the commission of the offense, about the time of its alleged commission, is conceded and vouched for by his testimony.

Touching the other bills of exception, it is thought that the proper disposition of them was made in the original opinion.

For the reasons stated above, the motion for rehearing is overruled.

Overruled.