Cadan v. State , 95 Tex. Crim. 645 ( 1923 )

In his motion for rehearing appellant complains that we failed to discuss the alleged errors presented in his bills of exception one, three and five, and now insists that the matters presented there call for a reversal of the judgment.

We learn front bill of exception number one and the qualification in connection therewith that while the district attorney was examining one of the State's witnesses the sheriff of the county brought into the court room a copper kettle with some kind of lead pipe attached and placed it on the floor near the district attorney in sight of the jury. The bill fails to show how the sheriff happened to bring this apparatus into the court room. It is not shown that the district attorney in the presence of the jury requested that it be brought in. The kettle and pipe remained where it was placed by the sheriff for about five minutes when appellant raised objection to its presence, whereupon the court directed its removal, and it was moved out of the court room into a hall. The jury crossed this hall at a point about twelve feet from where the apparatus was sitting. No testimony was offered before the jury to identify or prove what the kettle and pipe were and neither were they offered in evidence. The qualification to the bill shows that neither kettle nor pipe was mentioned by any one in the presence or hearing of the jury. There appears to have been no suggestion that it had any connection with the case being tried. Staten v. State,93 Tex. Crim. 265. We have not been able to reach the conclusion that it presents a matter which calls for a reversal.

Appellant put his reputation as a peaceable law-abidding citizen in issue, and proved by several witnesses that such reputation was good. Having made such proof by the witness Schwertner, bill number three shows that upon cross-examination the State over objection was permitted to ask the witness: "Do you know anything about whether he sold intoxicating liquor at his home?" to which the witness answered "I didn't hear anything about that at all. I was very much astonished at it." The objection urged as shown by the bill was that "such reputation was not provided for by the statute nor permitted by the law to be asked and inquired into." The evidence shows that the sale under investigation was alleged to have been made at appellant's home. If the inquiry by the State was intended to elicit from the witness what knowledge, if any, he had with reference to this particular transaction upon which the prosecution was based, the inquiry was a proper one. The answer of the witness indicates that he so understood the question, otherwise the irresponsive part of the answer that he was "very much astonished at it" would be incapable of explanation. The witness doubtless was informed of the present accusation against accused and seems to have expressed his astonishment relative to it. This part of his answer was not responsive to the question, and the State should not be held responsible for it. If it was thought to be hurtful a request directing the jury to disregard it should have been made. This was not done. The contention is made, however, that if the question was intended to test the information of the witness relative to his testimony as to accused's reputation, or as affecting the weight to be given his testimony in that respect by the jury, it was so framed as not to call for what he may have heard about accused, but called for the witness' personal knowledge about particular conduct on accused's part, which was improper. No objection was urged to the question because of its form. Although a question may be so framed as that an answer might elicit improper evidence, yet if the answer made does not so result no harm occurs. The witness answered that he had neverheard of the matter inquired about regardless of what may have been in the mind of the interrogator; hence, we conclude that in any event the matter as presented in the bill does not present error. When the further question, as to whether witness knew anything about appellant having a still and mash, was objected to the question was withdrawn, and no answer given. In the absence of a showing to the contrary we must assume the question to have been asked in good faith, and that when the grounds of the objection were stated the attorney himself was doubtful whether it was a proper inquiry and withdrew it.

We think no error was committed in refusing the requested charge defining a "sale." The main charge very fully and aptly submitted that matter to the jury.

For the reasons stated we conclude that the motion for rehearing should be overruled.

Overruled.