Moore v. State , 152 Tex. Crim. 312 ( 1948 )

This record affirmatively reflects that by cross-examination of the appellant, supplemented by the testimony of other witnesses, the State proved that at the time of the trial appellant stood charged by complaint before a magistrate of Austin County with the offense of rape upon a named white woman.

This testimony was introduced by the State as tending to impeach the credibility of the appellant as a witness in his own behalf. The trial court so recognized and instructed the jury that the testimony could be considered only for that purpose if they considered it for any purpose.

It is insisted by appellant that the testimony went further than mere impeaching and included the details of the transaction by showing the accusation of rape was upon a white woman, which was the same character of offense as that for which appellant was then upon trial.

Under the authority of Preather v. State, 113 Tex. Crim. 167,18 S.W.2d 649, the admissibility of this testimony is indeed doubtful, because it tends to show the details of the offense charged — that is, rape of a named white woman — but we are authorized to determine the admissibility thereof only when that question is presented by a proper bill of exception.

The question before us, then, is whether the bill of exception is sufficient to present for our determination the admissibility of the testimony.

When this bill of exception (No. 1) is examined, we find that the trial court qualified the bill by refusing to approve, as set out, the statement of the grounds of objection to the admission of the testimony by saying that no such objections were made at the time the testimony was offered and that the only objections made were those as shown in the question-and-answer record set out in the bill. Appellant accepted the bill as thus qualified, and is bound thereby.

This question-and-answer record shows only that appellant registered his objection to the whole of the testimony without stating any grounds or reasons for his objections. At no time do we find that appellant objected to that part of the testimony showing that the accusation of rape pending against him was upon a certain named white woman.

It must be remembered that the State was authorized to show for impeaching purposes that a complaint charging rape was pending against appellant. Thus a portion of the testimony complained of was admissible.

In Cadle v. State, 122 Tex.Crim. R., 57 S.W.2d 147, we said:

"There is no rule better known or which this court is oftener called upon to apply than that a bill of exception is too general to be considered if it includes objections to a number of statements or things set out in the bill, some of which are admissible, and there is nothing in the objection urged to directly challenge or single out the objectionable evidence."

See, also, Branch's P. C., Sec. 211; Dixon v. State, 91 Tex. Crim. 217, 238 S.W. 227; and Tracy v. State, 111 Tex. Crim. 160,12 S.W.2d 205.

Under the circumstances here presented, appellant was under the burden of leveling a specific objection to that portion of the testimony tending to show the details of the accusation of rape pending against him. This he did not do, consequently the admissibility of the testimony in the particular insisted upon is not before us for consideration.

The witness Tracy Rader, the companion of the prosecutrix on the night of the alleged rape, said while testifying in behalf of the State, that he knew the prosecutrix and "I go with her." He also referred to her as his fiancee.

The prosecutrix, in her testimony, said, "I know a young man by the name of Tracy Rader."

Upon motion for new trial and as newly discovered testimony, the appellant showed that after the alleged crime and about a month prior to the time of trial, Rader and the prosecutrix had married and at the time they were testifying as witnesses in the case they were husband and wife. Appellant contends that this concealment of their marriage constituted such deceit and fraud against him as to require a new trial, in that the jury had no evidence before it other than that prosecutrix was an unmarried female, which fact was calculated to cause the jury to render the severe penalty it did.

Just why these young people concealed from the jury the fact of their marriage we do not know. Of course it would have been not only fairer but better to have done so.

The trial judge, in exercising his discretion in this matter in overruling the motion for new trial, found that a different result would probably not have resulted had this fact of marriage been made known to the jury. We cannot say that the trial judge abused his discretion in so finding.

The motion for rehearing is overruled.

Opinion approved by the Court.