Davis v. State ( 1928 )

The appeal in this case was dismissed at a former day for lack of a proper appeal bond. Within the time allowed, the defect has been cured and the appeal is now re-instated and the case decided on its merits.

Five bills of exception appear in the record. Bill No. 1 is to the refusal of a continuance sought because of the absence of Charlie Hart. In a qualification to this bill the court says there was no showing of diligence to get Hart, and the facts are set out in the qualification. Hart testified on a former trial of this case in Hunt county. Venue was changed to Hopkins county. The trial term convened in Hopkins county on January 23, 1928. Hart was not then in attendance. No process was asked for him. The criminal docket was taken up February 6, 1928. Hart was still absent, but no attachment was asked or other process at that time. On February 17, 1928, a subpoena was issued to Hunt county for Hart, returnable February 20th. It was returned not served. These facts wholly fail to show diligence. We see no necessity for citation of authorities supporting so plain a proposition.

Bill No. 2 sets out a question asked, and also what counsel intended to elicit thereby, but the bill fails to state what the answer of the witness would have been. Such bill is manifestly insufficient. Kalsky v. State, 37 Tex. Crim. 247.

Bill No. 3 sets out alleged error in the refusal of the court to allow in evidence all of a written statement made by appellant's wife before the grand jury, it being stated that counsel for the State had read from such written statement in asking of said wife a question on cross-examination. The court makes the statement in a qualification to this bill that when the State's attorney questioned Mrs. Davis, he had before him a piece of paper, none of the contents of which were introduced in evidence, and which the court did not know, which was not shown to be a statement made by Mrs. Davis anywhere; that no part of any statement made by Mrs. Davis before the grand jury was introduced in evidence. Accepting this as true, there is no merit in the bill. For another reason, the bill brings nothing before us. It is this: Art. 728 Cow. C. P., goes no further than to say that when any part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be put in evidence by the other party. Plainly an application of this to a case where it was shown that a witness was asked if she had not said in writing before the grand jury "Bob Davis and I came to Greenville, brought this bond and offered it to Walter Waid, who said the bond was not good," would afford excuse only to the opposite party for introducing such part of the written statement in question as bore "on the same subject." This bill to be good would have to set out that part of the statement "on the same subject," which was not admitted. This it does not do, either in words or substance. As affecting this question see Earnest v. State, 83 Tex.Crim. Rep.; Wood v. State,80 Tex. Crim. 398; Payne v. State, 85 Tex.Crim. Rep.; Miller v. State, 92 Tex.Crim. Rep..

Bill No. 4 seems taken to the refusal to admit in evidence a written statement made before the grand jury by Jeff Davis. Such written statement, if any there was, is not set out in whole or in part in the bill, and we can not therefore appraise the soundness of this complaint. One offering such testimony, in order to show to us that error has been committed, must not only set out in his bill in words or substance the rejected testimony, but must show therein further such facts as will enable us to determine the justness of his contention.

Bill No. 5 sets out that the court erred in not admitting a statement made by appellant before the grand jury, it being stated that the court had permitted the district attorney to ask appellant various questions regarding such statement. The qualification appended to this bill states that the district attorney was permitted to ask appellant while a witness if he had not said certain things, and to read to appellant from a statement made by appellant before the grand jury; also that on redirect examination appellant's attorney was permitted to ask him relative to all matters thus brought out by the State's attorney regarding what he said before the grand jury, but no part of the statement having been offered in evidence by the State, it was not deemed admissible on behalf of the appellant. We have examined the supposed written statement of appellant, attached to this bill, which statement however is in no way certified or verified as having been made by appellant before the grand jury, but if it was so approved, there seems nothing in it explanatory of or in aid of appellant's testimony as given from the witness stand on this trial.

Appellant asked four special charges, two of which were given and two refused. Complaint is made of the refusal of special charge No. 4 in which it was sought to have the jury told that if appellant was drunk at the time he attempted to pass the alleged forged instrument, and that as the result of such condition his mind was so affected that he did not comprehend that such instrument was forged, an acquittal should result. No authorities are cited in the brief. In our opinion such charge was properly refused. Little v. State, 42 Tex.Crim. Rep.; Stoudenmire v. State, 58 Tex.Crim. Rep..

The facts seem to amply support the verdict and judgment. Appellant was with his kinsman when the latter tried to get one Anderson to sign an appearance bond. Anderson refused. Later appellant's kinsman signed Anderson's name to the bond, and, according to appellant's own statement, told the latter of the fact that he had so signed Anderson's name to said bond. Thereafter appellant tried to get the officers to accept said bond but was met with refusal.

Finding no error in the record the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.