Rushing v. State , 25 Tex. Ct. App. 607 ( 1888 )

Willson, Judge.

On the morning after the alleged assault, Press Rushing, the brother of defendant, stated to Mann, the sheriff, that his brother, the defendant, would plead guilty, and wanted the matter settled up as cheaply as possible. Defendant was not present when this statement was made, and there is no proof that he authorized his brother to make any such statement.

When this evidence was offered, the defendant objected to it upon the ground that it was hearsay, whereupon the eounty attorney stated that he expected to prove facts which would render said testimony legal, but declined to inform the court, when interrogated, what such facts were. Said testimony was admitted by the court, and the defendant reserved his exceptions by bill. The Assistant Attorney General confesses that this action of the court was erroneous, and we agree with him; and we are further of the opinion that such illegal testimony was calculated to injure the rights of the defendant. It should not have been admitted in the first instance upon the equivocal and uncertain statement of the county attorney that he expected to show its admissibility : and, having been admitted erroneously, the error was repeated, and made more prejudicial, by the failure of the court to exclude such testimony from the jury. (Phillips v. The State, 22 Texas Ct. App., 139; Marshall v. The State, 5 Texas Ct. App., 273.)

Opinion delivered June 13, 1888.

Over objections of the defendant, the State was permitted to introduce evidence proving that the general reputation of the prosecuting witness, Miller, for truth and veracity, was good. Bo evidence had been introduced by the defendant which directly assailed the veracity of the witness, Miller, further than that which contradicted his statements with relation to the main issue. There was simply a conflict between his testimony and that of the witness for the defense in regard to the alleged assault—such a conflict as is of common occurrence in cases of this character. Bo particular discrediting facts had been developed against said witness, and he was not a stranger in the -county, but a resident there. We do not think it was proper to admit such testimony, as the facts do not bring the case within any exception to the general rule which excludes testimony as to the good character of a witness, unless the veracity of such witness has been directly assailed. (Phillips v. The State, 19 Texas Ct. App., 158.)

In the brief of counsel for the defendant, several objections are urged to the charge of the court, and objection is also made "to the refusal of the court to give special instructions requested by the defendant. We have examined the charge, and do not find it free from errors, but the errors, we think, are of a character which do not, in the absence of proper bills of exceptions, require notice, as they are not fundamental and on another trial may not occur. There is in the record a paper which counsel for defendant refers to as a bill of exceptions tp the charge of the court, but upon inspection we find that the trial judge re-, fused to allow and approve said bill, but states that it is incorrect. We can not consider it as a bill of exceptions.

Because of the errors committed in the admission of testimony, which have been mentioned, the judgment is reversed and the cause is remanded.

Reversed and remanded.