Casey-Swasey Co. v. Virginia State Insurance , 33 Tex. Civ. App. 85 ( 1903 )

Appellee was permitted, against the objections of appellant, to prove by witness Z.P. West that two indictments for perjury were pending against him (West) in the District Court of Comanche County, Texas; and by witness J.T. Maroney that he, too, had been indicted in the same court for the same offense.

That it is incompetent to thus impeach a witness, except on cross-examination, is well settled. Texas Brewing Co. v. Dickey, 43 S.W. Rep., 577. True, it has been held by this court and several others that a witness may be thus discredited on cross-examination, but there are numerous authorities, including some from our courts of civil appeals, to the contrary. See cases cited by us in Texas Brewing Company v. Dickey, supra, and the following cited by appellant: Hill v. Dons, 37 S.W. Rep., 638; Freedman v. Bonner, 40 S.W. Rep., 49; Kruger v. Spachek, 22 Texas Civ. App. 307[22 Tex. Civ. App. 307], 54 S.W. Rep., 295; Van Bokelin v. Berdell, 130 N.Y. 141, 29 N.E. Rep., 254; 66 S.W. Rep. (Ark.), 432; 64 S.W. Rep. (Ky.), 954; Lewis v. Commonwealth, 42 S.W. Rep. (Ky.), 1127; Millers v. Curtis, 158 Mass. 137.

The rulings in this instance are not brought within the exception to the general rule, since the record refutes the idea that this testimony was drawn out on cross-examination. It was not until after West, who was an important witness for appellant, had been examined in chief and cross-examined, and not until after appellant had rested and appellee had offered him as a witness, as appears from the statement of facts, that the fact of his having been indicted was proven. Maroney was not offered as a witness by appellant at all, though his testimony in the main was favorable to appellant, agreeing substantially with that of West, and the fact of his having been indicted appears to have been drawn out on his direct examination by appellee. The bills of exception, besides showing that the testimony was introduced on the trial over objection, only show the questions, answers and objections, and do not therefore of themselves show how it was introduced, but, read in connection with the agreed statement of facts, leave no room for the inference that it was drawn out on cross-examination, particularly as to witness Maroney. The objections stated in the bills of exception were prima facie good, and the record as a whole, so far from bringing the case within the exception to the general rule, which exception at best rests upon conflicting authority, affirmatively excludes that view, at least as to Maroney.

Another well settled rule of evidence was violated in the admission of this testimony of Maroney, — that which forbids the impeachment of the character of a witness by the party offering him.

That the evidence objected to was prejudicial will not be disputed, and its admission necessitates a reversal of the judgment.

In view of a retrial, we venture to suggest that if in the pending indictments perjury was assigned upon statements made after this controversy arose, and about the matters out of which it arose, we very much doubt the admissibility of such testimony, even when drawn out on cross-examination. Reversed and remanded.

Reversed and remanded.