Gordon v. State ( 1948 )

The State has filed a motion for rehearing calling attention to the statement in our original opinion that, "We think that under the facts of this case he (appellant) was entitled to prove his reputation for truth and veracity," and urging that in this we fell into error. We think the State is correct in such contention. In Branch's Ann. Tex. P. C., p. 115, Sec. 184, appears the following:

"Proof of the general reputation of defendant or of any other witness for truth is not admissible where no attack has been made on the witness, but there is a mere contradiction between witnesses, or confusion in the statements of the witness."

Many cases are cited by the author supporting the text. We probably confused the right ordinarily to prove general reputation of an accused as a law-abiding citizen with the rule as to truth and veracity.

It will be noted that appellant proved by Dr. Smith and Mr. McReynolds the condition of appellant's mother-in-law, and also the condition of Mr. McReynold's mother-in-law. At the instance of the State the court withdrew from the jury all of this testimony including that with reference to appellant's mother-in-law who lived with him. The court evidently adopted the State's view reflected in its motion for rehearing that Art. 666-23a, Vernon's Tex. Ann. P. C., restricted the right of transportation of intoxicating liquor into dry territory to liquor which had been purchased for the consumption of the transporter, and that such right did not extend to use of such liquor by members of accused's family. This view is in direct conflict with the holding of this court in Perkins v. State,196 S.W.2d 934 upon the exact point here involved, and construing Art. 666-23a. In that case accused testified that he was transporting the whisky for his father-in-law under the advice of a physician. The father-in-law testified to the same facts. Accused requested a special charge that if he was transporting the whisky for his personal use he should be acquitted. The charge was refused. This court quoted Art. 666-23a and said:

"If appellant had in fact purchased the whisky in question in a wet area and at the time of his arrest he was transporting it to his home for his own consumption or for use by his father-in-law, who was ill, he would not be guilty of unlawfully transporting whisky."

In withdrawing the testimony the court stripped appellant of evidence on a defensive issue as to the liquor being taken to a member of his own family, his mother-in-law.

We now discuss the withdrawal of the testimony regarding the illness of Mr. McReynold's mother-in-law, and the transportation by appellant of a part of the whisky for her use. This would furnish no defense so far as transportation by appellant for such purpose was concerned. Was the jury entitled to consider such evidence upon the issue, not of guilt, but upon the punishment which should be assessed? Penalties attached to offenses are upon a sliding scale, the law-making body realizing that for the same offense the merited punishment would vary, dependent upon the particular case under investigation. In order for the jury to determine the penalty there is no other just way than to let the jury hear the evidence regarding the circumstances of the particular transaction.

Where a plea of guilty is entered under the formalities required, such plea admits the existence of all the statutory elements of the crime charged, but legal evidence is always admissible to enable the jury to know what punishment should be assessed within the sliding scale of the penalty fixed by the statute to the offense charged under the facts of the particular case, and the facts can only be ascertained from the evidence. This is true not only where there is a plea of guilty, but upon a plea of not guilty as well. If the jury is deprived of the evidence as to the facts of the particular case there is taken away from them the very thing upon which turns the question of penalty to be assessed. Therefore, when the trial court in the present instance withdrew from the jury evidence regarding the illness of Mrs. McReynolds it removed from their consideration a fact pertinent not upon the issue of guilt but upon the issue of punishment.

It is unthinkable that a jury would be inclined to fix as severe punishment where accused, though mistaken as to his legal rights, was doing what he considered a neighborly act. Therefore we adhere to our original announcement that the trial court erred in withdrawing evidence which was admissible to enable the jury to determine the penalty to be assessed.

The State's motion for rehearing is overruled.

ON MOTION FOR REHEARING.