Vallone v. State , 141 Tex. Crim. 220 ( 1940 )

In his motion for rehearing appellant urges with much earnestness that we were wrong in holding that bills of exception numbers three, four and five did not present reversible error.

The questions complained of in the said three bills are set out in our original opinion. It must be borne in mind that all the questions were answered in the negative. It was appellant's contention that the questions were asked with the purpose of prejudicing the jury against appellant; that the State had no evidence to substantiate the matters embraced in the question, and that they were unfounded. The record discloses that the Assistant District Attorney, Mr. Winborn, was conducting the cross examination and propounded the questions involved. The reasons which prompted the questions became the subject of investigation on the hearing of the motion for new trial, and Mr. Winborn's evidence on the subject follows:

"I have read the defendant's amended motion for a new trial in this case, and have familiarized myself with it and particularly the points raised in paragraph four, five and six thereof, wherein the defendant contends that I was not acting in good faith in asking Tony Vallone, a witness for the defendant, and also the defendant, Vincent Vallone, certain questions regarding certain conduct of the deceased, Thomas, and his friend, Strelau, prior to the killing of Thomas, and further contending that those questions were asked for prejudicial reasons with no information at that time as a predicate for propounding such interrogatories.

"I remember questioning the witness for the defendant, one Tony Vallone, and also the defendant, Vincent Vallone. I recall asking those questions. I did not ask them for the purpose of creating prejudice in the minds of the jury. I asked those questions because I had reason to believe that it did happen, from the information gained in the investigation conducted by the District Attorney's office and myself independently.

"I make this statement. There were two questions in which I had the information. The defendant testified that after the shooting that one of the reasons he went back into the 21 Club was to have his son washed up. I had information that the son left there and went into a barber shop over by the old city hall and washed up, and I asked Tony that question and he admitted that was true.

"As to the defendant, Vincent Vallone, I had information that, not Strelau, but that the deceased had been in that place a short time prior to that day and had won a sum of money, around two thousand dollars or twenty-two hundred dollars, and I asked him that question, if he hadn't been up there before, and he answered in the negative, and I pursued it no further; I accepted his answer and went no further. I asked him no further questions about that. I was simply seeking that information from the defendant himself. When he told me 'No,' I didn't go any further.

"I did ask substantially the question, to which objection is raised in paragraph four of defendant's motion, "And the reason of it was, didn't you find out they only had a small amount of money, and didn't one of you say "these cheap son of a bitches don't have any money"; didn't that happen?' I had information to the effect that that did happen.

"When I asked the question complained about in paragraph five of defendant's motion, 'Isn't it a fact that when they (meaning the deceased and Strelau) came in there (meaning said club) that day (meaning the time of the homicide) they started to gamble and it was discovered that between them they had only about eight or nine dollars, and weren't they bounced out one at a time and rolled down the steps?' I had information which I thought justified me in asking that, and I honestly believed it did happen.

"When I asked the defendant the question complained of in paragraph six of defendant's motion, 'And won some two thousand dollars,' I had information which I felt justified me in asking that.

"As to whether or not I could prove it or not, when I asked those questions, I was doubtful of being able to prove it under the rules of evidence. I had information that satisfied me that it did happen, but I was doubtful of being able to prove it; that is, have it in the shape that it would be admissible as evidence, and when I asked the defendant those questions I was assuming he would answer truthfully."

In view of the sworn testimony of Mr. Winborn to the contrary we would not be justified in assuming that the questions objected to were asked in bad faith or for an improper purpose.

In discussing objections urged to questions propounded to the defendant this court said in Patterson v. State, 87 Tex. Crim. 95,221 S.W. 596:

"The questions which the appellant failed to answer in an affirmative way were not such as to bring them within the rule which condemns conduct on the part of the prosecution wherein it is sought to discredit the case of the accused and secure a verdict adverse to him by bringing before the jury damaging facts through irrelevant questions, or questions which obviously are not expected to elicit proof or lay a predicate for legitimate evidence. This rule is conducive to a fair administration of justice, and its violation has often been the subject of comment, and at times the cause for reversal. McIntosh v. State, 213 S.W. 659; Faulkner v. State,80 Tex. Crim. 341, 189 S.W. 1077; Henley v. State, 81 Tex. Crim. 221,195 S.W. 197. The rule is not to be made use of, however,to abridge the right of legitimate cross examination." (Italics ours.)

Giving effect to the rule with the qualification in mind, and assuming under the circumstances stated that the questions were propounded in good faith based on information which led counsel for the State to believe the matters involved in the questions were true, suppose the witness had answered the questions in the affirmative. Certaintly the answers would not be subject to a motion to strike based on a claim that the questions were improperly framed, having been asked on cross examination. It seems equally sure then that a negative answer would have nothing to do with rendering the form of the questions improper.

In Fritts v. State, 119 Tex.Crim. R., 42 S.W.2d 609, where the death penalty was assessed, questions were asked accused on cross examination which were objected to, but were answered in the negative as here. We there said even if the questions had been improper a reversal would not necessarily follow, the questions having been answered in the negative, and quoted from Ard v. State, 101 Tex.Crim. R., 276 S.W. 263, as follows: "The asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error when complained of in a bill of exceptions unless the answer is given, and, if given and answered in the negative, as is the case in appellant's bill of exceptions No. 5, no error would be made to appear."

See also Booth v. State, 90 Tex.Crim. R., 234 S.W. 888; McCoy v. State, 129 Tex.Crim. R., 86 S.W.2d 748. The holding in Ard's case (supra) was followed in Graham v. State, 122 Tex.Crim. R., 55 S.W.2d 826; McCoy v. State,129 Tex. Crim. 259, 86 S.W.2d 748.

In his motion for rehearing and written argument in support thereof appellant mentions Alexander v. State, 8 S.W.2d 176; Peysen v. State, 136 Tex.Crim. R., 124 S.W.2d 137; McClure v. State, 136 Tex.Crim. R., 124 S.W.2d 1007; Waters v. State, 91 Tex.Crim. R.; 241 S.W. 496; Sumrow v. State, 116 Tex.Crim. R.; 31 S.W.2d 823; McNaulty v. State, 138 Tex.Crim. R.; 135 S.W.2d 987; Lamm v. State, 94 Tex.Crim. R., 252 S.W. 535; West v. State, 137 Tex. Crim. 554,132 S.W.2d 872; Bowers v. State, 138 Tex. Crim. 98,134 S.W.2d 675. It is not believed that such cases furnish much aid in considering the question before us in the present instance. Said cases furnish illustrations where questions to witnesses were put in such form as to inform the jury of specific crimes or misconduct of accused which were collateral to and not connected with the offense upon trial, which facts were not properly provable. In the opinion on rehearing in the Waters case (supra) we find this language:

"The questions propounded by counsel for the state in the instant case were improper, and, even had they elicited affirmative responses, the evidence would have been inadmissible." Therein, we think, lies the vital distinction in the questions which are the subject of objections in the present case. If affirmative responses had been elicited the evidence would clearly have been admissible.

Appellant relies strongly upon Ballard v. State, 97 Tex. Crim. 455,262 S.W. 85, to support his contention that bills three, four and five present reversible error, and from a casual reading it would seem to be more nearly in point than any other case to which our attention has been directed, and yet there is a marked distinction between it and the present case. Ballard killed Bates. The evidence showed that Bates was hunting Ballard with the avowed intention of killing him. Bailey was an employee of Ballard. Bailey had an extended conversation with Bates a short time before the killing in which he repeated the threats to kill Ballard. Bailey repeatedly declared that Bates declined to give a reason for wanting to kill Ballard. On cross examination the witness was asked the question "Don't you know Bates did tell you what he was going to kill Ballard for?" He again answered in the negative. He was then asked "Don't you know that Bates told you that he was going to kill Ballard on account of improper conduct of Ballard toward Bates' wife?" The court sustained objection to the question and it was not answered. In discussing the matter this court assumed, — in the absence from the record of a reason for the trial court's ruling — that under the circumstances the question was not asked with the expectation of an affirmative answer. In the present instance under the facts as heretofore related this court would not be justified in assuming that questions here the subject of objections were asked in bad faith. Again, since the reason for the trial court's ruling in Ballard's case was a matter of conjecture it might be that he thought appellant would in no event be bound by it even had Bailey answered the question in the affirmative, that is, that improper relations between Ballard and Mrs. Bates could not be thus proven and that the question sought to elicit inadmissible evidence. The reversal in Ballard's case did not rest alone upon the incident mentioned. The representative of the State in two instances told the jury in his argument what he could have proven but had not. Suppose Ballard had been on the witness stand and State's counsel was in possession of information which led him to believe that improper relations had existed between Ballard and deceased's wife, and counsel on cross examination had asked Ballard if in fact such relations had not existed and if he (Ballard) did not know that this was the reason of Bates' anger and threats to kill. Under such circumstances what basis would there have been for a contention that the question was improper, regardless of the answer? If such had been the picture in Ballard's case then we would have a parallel here.

It occurs to us that to sustain appellant's contention here would destroy the very end sought to be attained by legitimate cross examination. If the defendant or any other witness is thought to be in possession of information which would be legitimate evidence if an admission as to such facts could be secured from him on cross examination, certainly it would not be improper to so frame the question as tended to secure the admission by an affirmative answer. Yet to hold as appellant contends would deter counsel from asking such a question, for fear of being penalized if a negative answer was given by the witness.

In our original opinion we said that after Strelau and the deceased were thrown out one of them came back up to the stairway and said, "Sonnie, give us back something." Our attention has been called to a typographical error. The name should have been "Lonnie," and the original opinion has been corrected to so read.

Believing the proper disposition was made of the case originally appellant's motion for rehearing is overruled.