Ables v. State , 101 Tex. Crim. 479 ( 1925 )

BERRY, Judge.

Appellant was convicted in the district court of Eastland County for the offense of bigamy and his punishment assessed at confinement in the penitentiary for a term of three years.

Bill of exceptions No. 1, complains at the court’s action in overruling his application for a continuance. The record shows that the appellant was indicted on the 4th day of December and that the case was called for trial on the 19th day of January following and the only diligence used by appellant to procure the attendance of the absent witnesses was that on the 2d day of January he made application for the witnesses and that the clerk mailed to the sheriff of the different counties where the said witnesses were alleged to live supoenas for same and that there had been no return showing the whereabouts of any of the said witnesses or giving any reason why the said subpoenas were not served. We think the appellant wholly lacking in diligence with reference to these witnesses. We do not understand that appellant has the right to a continuance where there has been no greater effort on his part to have the witnesses subpoenaed than is shown by the foregoing, and so believing we conclude that the court did not err in overruling his first application for a continuance.

We may add that a careful examination of the statement of the facts adduced on the trial of the case fails to convince us that the facts which appellant expected to prove by the absent witnesses were of such importance as to have justified the court in granting the defendant a new trial on account of their absence.

Bill of exception N. 2, complains at the argument of the State’s counsel to the effect1 ‘ that the defendant is a perjurer and you cannot consider his testimony. ’ ’ The court qualifies this bill by stating that counsel really told the jury that they had examined the license which had been admitted in evidence in this case and heard the testimony of the defendant and that defendant had perjured himself in connection with this testimony and that the jury could not consider his testimony. The court further certified that on the defendant objecting to the argument, he instructed the jury not to consider the same. We think this action of the court protected every right that appellant could have possibly had in the matter. We are not convinced that the argument was not warranted by the testimony disclosed by the record and it was certainly not of such an inflammatory nature as to warrant us in reversing the case after the court had excluded the same from the consideration of the jury.

Appellant complains at the statement of the State’s counsel to the effect, “That the evidence in this case shows that the defendant has been indicted on several other charges, and gentlemen of the jury, you should put him where he belongs. The defendant has been scratching paint off of the penitentiary door long enough.” The bill shows that the court orally instructed the jury to disregard this argument and shows that no written charge was requested asking the jury not to consider it. The bill further shows that the evidence from the appellant himself shows that he had been indicted within a year or two prior to the date of the trial and the indictments, against him charged a felony. Under this condition of the record, we perceive no error in the matter.

Bill No. 4, complains at the court’s action in permitting the State’s counsel to ask the defendant while on the stand if it was not a fact that he had been indicted in Hopkins County four or five times, and if he was not placed in jail under said indictments, and that defendant was forced to tell that he was. The bill shows that this testimony was excluded by the court until it developed from the defendant’s testimony that the date of such transactions was within two years from the date of said trial and when this was done the court admitted the testimony but properly limited it in his charge to the jury. In this State of the record no error is perceived.

The only serious question raised by the appellant in any of his bills is that disclosed by bill of exception No. 5. This bill shows that while the father of the appellant was on the stand as a witness in his son’s behalf, the prosecuting attorney was permitted to ask the witness if it was not a fact that the appellant was indicted by the grand jury of Hopkins County, and had been indicted four or five times, and the witness was permitted to testify that the appellant had been indicted four or five times and that he was in jail in Hopkins County on said charges but they were never tried. The admission of this testimony from a witness other than the defendant himself was improper, as such transactions were purely extraneous in this case. It was however permissible to prove by the appellant while a witness in his own behalf for the purpose of testing his credibility as a witness that he had been recently indicted for other offenses involving a charge of felony or a misdemeanor involving moral turpitude and these facts had already been introduced in evidence by the State in its cross-examination of the appellant while testifying as a witness in his own behalf; and while we hold that in this case it was error for the State to prove these independent charges against the appellant by another witness, yet we cannot say in view of the fact that the same evidence was already before the jury from the lips of the defendant and in view of the fact that he had been so charged with other offenses, that the admission of this testimony from the father of the appellant was of such prejudicial effect as to warrant us in reversing the case. Wagner v. State, 53 Tex. Crim. Rep. 306.

The court very carefully guarded the appellant’s rights concerning this testimony of other offenses in his charge to the jury and pertinently and clearly instructed them that it could not be considered for any other purpose than for the purpose of assisting the jury, if it did assist them, in passing upon the credibility of the defendant as a witness in the case on trial. Under these circumstances, we hold that no reversible error was shown by the admission of this testimony.

We have carefully considered appellant’s special charges and so far they are applicable to the facts in this case they are fully covered by the court in his main charge to the jury.

Finding no reversible err or, in the record, it is our opinion that the judgment should be in all things affirmed.

• Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and,approved' by the Court.