Jones v. State , 52 Tex. Crim. 206 ( 1907 )

BROOKS, Judge.

Appellant was convicted for theft and his punishment assessed at confinement in the jail for three months and a fine of $50.

Bill of exceptions Ho. 1 shows that the State’s witness, H. M. Wooley, was asked the following question: “State whether or not the defendant, Dave Jones, ever told you that he did get or found $10, but he did not intend to give it up." To this question appellant objected on the ground that no predicate had been laid. The county attorney stated to the court that he expected to impeach the defendant by the witness, Wooley, the defendant having denied having made such statement to said witness. The court overruled defendant’s objection and stated to the jury “the testimony will be admitted only on the ground of impeaching the defendant, and the court instructs the jury to consider it for no other purpose." The defendant then urged the additional objection that no predicate’ had been laid for the testimony, even for impeaching, as no time and place had been fixed. The court overruled the objection- and said witness was permitted to answer as follows:

“Yes, the defendant told me before he was arrested that he did get $10, or found $10, but he did not intend to give it up. Yes, I had a warrant for his arrest on this charge and went to his home and in his room; he was asleep; I opened the door of his room, went in, woke him up and asked him why he got the $10 and he told me as before stated. Yes, I immediately arrested him; I think he knew I was a police officer. I did not warn him at all." The above is almost a literal copy of the bill of exceptions. The ground insisted upon is that there is no time and place fixed for the impeachment. The bill does not certify that the grounds urged were true, nor does the bill so state. While technically correct, the objection is entirely obviated by the answer of the witness, who does state the time and place when the statement was made. We accordingly hold, that there is no reversible error in the ruling of the court.

Bill of exceptions Ho. 2 shows that when the same witness, Wooley, was on the stand, the State asked said witness if the defendant told him he got the $10 and after the court had overruled the appellant’s objection that no predicate had been laid either for the admission of the defendant’s statements or confessions or impeachment, as shown in bill of exceptions Ho. 1, said witness testified as follows: “Yes, defendant told me before I arrested him that he did get or found the $10, but he did not intend to give it up. I had a warrant for his arrest on this charge. This conversation was in defendant’s house. When he made the statement, I had not arrested him; I woke him up. I immediately arrested him on this charge. I think he knew I was a peace officer. I did not warn him." Defendant moved the court to strike out all the testimony of said witness, Wooley, because it had clearly been shown that no predicate had been laid for same, and had conclusively shown that while in fact the warrant had not actually been read to defendant at the time of said statements, it clearly showed he was under duress and virtually arrested upon said charge and clearly inadmissible and prejudicial to defendant. We think this testimony shows that he was under arrest at the time this confession was made. It follows, therefore, that the court erred in admitting same.

Bill No. 3 was that Mrs. Kline was permitted, over appellant’s objection, to testify that the prosecuting witness, Jim Phoenix, had been working for her, Mrs. Kline, about eleven months and had been a collector and collected for her, and always returned the money. This testimony was inadmissible, since there was no evidence to impeach the testimony of the witness, except by contradictory evidence. Unless appellant had introduced testimony impeaching the character of the prosecuting witness, it is never permissible to bolster testimony up with testimony of the character indicated above.

For the errors pointed out, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Henderson, Judge, absent.