Bennett v. State , 24 Tex. Ct. App. 73 ( 1887 )

White, .Presiding Judge.

By article 755, Code of Criminal Procedure, it is provided that “the rule that the party introducing a witness shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in any other manner except by proving the bad character of the witness.”

On application of this change in the rule to any particular case, the question is, did the witness state facts injurious to the party calling him as a witness? (Tyler v. The State, 13 Texas, Ct. App., 205; Thomas v. The State, 14 Texas, Ct. App., 70.) In other words, before the right -accorded by the statute can be availed of, some statement must have been made by the witness injurious to the cause he was called to testify in behalf of. It is not sufficient that the witness makes a statement different from what the party calling him had reason to believe and did believe he would make, if the statement made is not injurious.

By the bill of exceptions in this case it is shown that the prosecution had placed one Hardy Kyle on the stand as a witness for the State, and on his direct examination he stated: “I never heard defendant say anything about the Sparks yearling.” This is in full all the statement made by him. Does it appear that this statement was injurious to the State or any one else? If so, then any negative answer to a question propounded where an affirmative was desired, and vice versa, might be claimed to be injurious.

After the witness had so stated, over objection of defendant, the court permitted the prosecution, with avowed purpose, to first lay a predicate, and then introduce evidence to impeach its witness by proving that said witness had on another occasion stated to counsel for prosecution “that defendant had tried to hire him (witness) to go before the grand jury and testify for him in this case, and that he had offered to hire him to testify before the jury, and that he was so drunk when before the grand jury that he did not know what he then swore.”

In our opinion, a proper and sufficient case in which the impeachment of one’s own witness would be allowable is not established by the facts shown. A case of surprise at testimony other than that expected and calculated upon is perhaps shown. But there is a well defined difference in the rules with reference to surprise and impeachment. “A party bona fide surprised at the unexpected testimony of his witness may be permitted to interrogate the witness as to his previous declarations alleged to have been made by the latter, inconsistent with his testimony, the object being to probe the witness’s recollection and lead him, if mistaken, to review what he has said. Such corrective testimony is also receivable to explain the attitude of the party calling the witness. But when the sole object of the testimony so offered is to discredit the witness, it will not be received.” (White v. The State, 10 Texas Ct. App., 381, quoting from 1 Wharton’s Ev., sec. 549.)

The ruling complained of was erroneous, and it can be readily imagined how the testimony- admitted to impeach the State’s witness, Kyle, even had it been pertinent to the issue raised, which is not made apparent, was most prejudicial to the rights •of this appellant.

Before finally disposing of the case it may be well to consider the third bill of exceptions, which, in so far as we are advised, submits a question never heretofore adjudicated in this State. When defendant called his father, Richard Bennett, as a witness, he was objected to by the State, because of incompetency, in that he had been convicted and incarcerated in the penitentiary for a felony. (Penal Code, art. 730, subdiv. 5.) To this the defendant replied that the witness had been legally pardoned for said offense, and produced the Governor’s full charter of pardon. The objection was properly overruled, and the witness testified. Afterward, in argument to the jury, when counsel for the prosecution were insisting that, notwithstanding the pardon,, the witness was entitled to no credit on account of his former conviction, defendant objected to such line of argument as illegal and unwarranted, and asked the interposition of the court to arrest and prevent it. This the court declined to do, and in his explanation to the bill of exceptions the learned judge says: “If the witness had been convicted of a felony and pardoned, it went to his credibility as a witness, and the jury had a right to know the character of the witness before them, and the attorney had the right to comment upon the credibility of the witness.”

With regard to the general effect of a pardon, the accepted doctrine is that a full pardon absolves the party from all legal consequences of his crime; it makes the offender a new man; it blots out his offense and gives him a new credit and capacity, and even so far extinguishes his guilt as that, in the eye of the law, the offender is as innocent as if he had never committed the offense. (Hunnicutt v. The State, 18 Texas Ct. App., 199; Carr v. The State, 19 Texas Ct. App., 635, and authorities collated and cited.) Notwithstanding this comprehensive doctrine, it seems equally well settled that, whenever the pardoned convict is presented as a witness, the judgment of his conviction may be put in evidence against him. Mr. Wharton says: “But a pardon does not preclude such conviction from being put in evidence,” and in support of his text he cites in the note" a long array of authorities of the highest standing. (Wharton’s Crim. Ev., 8 ed., sec. 489, taken from the opinion in Curtis v. Cochran, 50 N. H., 244.) In that opinion it is said: “A pardon is not presumed to be granted on the ground of innocence or total reformation. (Citing authorities.) It removes the disability, but does not change the common law principle that the conviction of an infamous offense is evidence of bad character for truth. The general character of a person for truth, bad enough to destroy his competency as a witness, must be bad enough to affect his credibility when his competency is restored by the executive or legislative branch of the government.” Mr. Greenleaf seems to think that a pardoned felon who has served his full term in the penitentiary “would be entitled to very little credit.” (1 Greenl. Ev., 13 ed., sec. 377.)

Mr. Starkie says: “And although a pardon can not convert a wicked man into an honest one, and confer credibility upon one who through the infamy of his conduct is not credible, yet such a pardon must be presumed to have been conferred after inquiry, upon good and sufficient ground, on an object worthy of the indulgence, and therefore worthy of being heard, but the degree of credit is still to be left to the jury.” (1 Starkie’s Ev., 7 Am. ed., p. 99.)

Opinion delivered October 22, 1887.

It was held in Baum v. Clause, 5 Hill, Hew York, 196, that 6‘though the pardon of one convicted of felony will in general restore his competency as a witness, yet the conviction may still be used to affect his credit.”

In the light of these authorities the action of the court in the premises, complained of in the third bill of exceptions, was not erroneous. Other errors presented will not be noticed, because they may not arise on another trial. Because of the error in the first matter discussed, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.