Nix v. State ( 1946 )

Ardent and earnest counsel representing appellant have presented this appeal, as the case was tried, with very exhaustive brief and argument followed by like diligence in their motion for rehearing.

There is nothing in the surrounding circumstances to excite one accustomed to appraising evidence and to assure him against a probability of the accused being the victim of an irresponsible and wreckless witness. We must, however, take the record as it is presented and that includes the conclusion of the jury on matters of fact. From their finding on controverted issues there is no appeal. If the evidence applied to the law warrants and sustains that verdict and judgment, then, whatever might be our private opinion, feeling, or sympathy, our duty is plain and we must follow the law. If the court is to be misunderstood in either the original opinion or that given on motion for rehearing, it is not too late to make ourselves clear. Definitely there is no intention or disposition on the part of the court to overrule or modify in the least the case of Brock v. State, 71 S.W. 20; Blake v. State, 193 S.W. 1064; or Smith v. State, 150 S.W.2d 388.

Consideration was given by each member of the court to the questions presented, with the conclusion by all of us that there is no reversible error shown by the record. If an error has been made it was that of the jury. The Court of Criminal Appeals must be as diligent and as guarded to see that we do not exceed our own authority as we are to correct the errors made by the trial courts. There was evidence to sustain the findings of the jury. It was sufficient in law and we are not called upon to criticize the verdict which they rendered.

The most troublesome question presented in the appeal was on the appellant's motion for a continuance. We do not now see that we could add to what has been written on this question. Very properly, in the opinion of the writer, Judge Hawkins had but little comment on a number of bills of exception which, in this case, as in all others, may not be taken to evidence a lack of consideration. The right of the State to cross-examine the wife or husband of the defendant in a criminal prosecution is limited by statute, and is a matter of public policy and of deep concern to the public, as well as involving the sacred rights of those bearing marital relationships. Our courts have gone far in their decisions for the protection of these rights and have diligently guarded against all efforts to infringe upon rules recognized in the common law and emphasized by statutory enactments.

We are not persuaded by the earnest arguments filed in the motion under consideration to discuss each and every bill of the twenty-six found in the record, but referring to those upon which the insistence has been most emphatic, we will discuss a few sufficiently to more clearly present our view. Bill of Exception No. 16 complains of the cross-examination of the wife. She was placed on the witness stand before appellant took the stand in his own behalf. On cross-examination she was asked some questions beyond the subject of her direct examination. The court should at that time have been more cautious in guarding against the commission of an error. The objection made should have been sustained for we doubt if he could foresee the record thereafter to be made, and the full consequence which might have resulted from the questions asked. As the case comes to us, however, we must consider the bills in the light of the entire record. The State asked her: "What had Troy (her husband) been doing that afternoon of the alleged rape that night — July 27, 1945?" To this she replied that he "had been about home that day." If this question and answer, admitted over appellant's objection, had contradicted a statement made by appellant its admission would have been error, provided it had the effect of creating the impression with the jury that he had falsified. An examination of the record, however, discloses that the appellant himself on the witness stand said: "The day before my wife told me I was being investigated in connection with this offense, Friday, I had been down in East Texas Oil Field." That was the same day that his wife testified the defendant had been at home. However, he added that he came back home and details a visit to DeKalb for an hour and a half or two hours, "just guessing," and that he had no occasion to remember at that particular time. He took another brief trip into the country, and then he and his wife went together on a short trip to see about some chickens, "* * * then we went to town and had lunch at the Post Office Cafe." (Emphasis added.) If we understand his testimony he was in and about home, as his wife stated, the major part of the day so that her statement could not be construed to be a denial of his evidence or to reflect in the least on the truth of the evidence which he gave. To hold otherwise would be a strained construction of the evidence.

The other two bills of exception, Numbers 22 and 23, about which appellant is also very insistent are so similar they can be considered together. Mr. Stewart, called by the State, testified that Troy Nix came to the Post Office Cafe, where the witness was working, after he had eaten supper, and showed him that his shoes were untied. This evidence, however, was withdrawn by the court and the jury instructed in very emphatic terms that they should disregard it and not consider it for any purpose. Mrs. Nix, the wife of appellant, was required to answer that her husband untied his shoes. Bill No. 23, following the same procedure as described in Bill No. 22, reflects that she answered that she did not see him untie his shoes, but noticed that they were untied. Appellant said his shoes were untied some time during the day, and gave his reason for wearing them that way. These bills were qualified by the court so as to eliminate any assertion of any harmful effect. In the absence of any qualification, however, we would be at a loss to understand how harm could result to appellant because of the things complained of in either of the bills.

Believing that the case has been properly disposed of, appellant's application for permission to file a second motion for rehearing is denied.