Stephens v. State , 98 Tex. Crim. 148 ( 1924 )

Appellant was convicted in the district court of Jones County of manufacturing intoxicating liquor, and his punishment fixed at one year in the penitentiary.

The State introduced two witnesses, Noah and Boyd Lairemore, and both swore that they had seen appellant making whisky. The defense introduced Mr. Waddell, who said he was a member of the grand jury which returned the indictment herein. His testimony was confused and confusing. He said he remembered two Lairemore boys being before the grand jury, and that one of the boys said he saw appellant making whisky and the other swore that he did not see same. Boyd Lairemore was brought before this witness in the presence of the jury, and he said that was not the boy who testified that he did not know anything about appellant making whisky. Witness was shown a written statement signed by Noah and sworn to and subscribed before the foreman of the grand jury. He then stated that he got the Lairemore boys mixed but it was his recollection that "he" said he did not see them making whisky. The "he" referred to seems to clearly indicate Noah. The defense thus attacked the veracity of Noah by proof of a statement contradictory to his testimony as given on this trial. In its rebuttal testimony the State placed on the stand the district attorney who identified a written statement made by Noah Lairemore before the grand jury and said written statement was then introduced in evidence and was in accord with the testimony of Noah as given on the witness stand herein. We think the matter referable to the rule allowing either side to support its witnesses who have been attacked by proof of statements at variance with their testimony as given, by introducing statements theretofore made by such witnesses in consonance with their testimony as given. Mr. Branch cites many cases in Sec. 181 of his Annotated P.C. in point. Lee v. State, 44 Tex.Crim. Rep.; Burch v. State, 49 Tex.Crim. Rep., and Pitts v. State, 60 Tex.Crim. Rep., are exactly in line with the proposition under discussion.

There is but one other bill of exceptions and it sets forth that Noah Lairemore was asked on cross-examination if he did not know that his sister had filed seventeen complaints against men and women in Fisher county. This was offered for the purpose of showing the animus of Noah Lairemore against one Hughey, who appears to be accused of connection with the illegal liquor transaction forming the basis of this prosecution. In sustaining the State's objection to the above question the learned trial judge told counsel for appellant that he might ask any question with regard to the complaints made by the witness' sister against appellant or either of the Hughey brothers. This seems to us as far as the questions might go. The real inquiry would be as to the feeling or animus of the witness against the appellant, but as affecting this his animus against others involved in the same transaction might be shown, but even if he was willing to admit that he had animus against parties other than those involved in the transaction, this could not be shown, and certainly the showing of feeling on the part of his sister against persons other than those connected with the transaction would have no place in this record.

Appellant asked a new trial for newly discovered evidence. He set out an affidavit of a Mr. Knox stating in effect that he was a member of the grand jury which returned this indictment, and that he would have testified, if called, substantially as did Mr. Waddell. The law requires diligence on the part of parties to procure testimony. If the defense knew of the Waddell testimony, we can see no reason or excuse for not investigating further by seeing other members of the grand jury and ascertaining whether or not they would testify in consonance with the testimony of Mr. Waddell. The attack made on the testimony of the Lairemore boys by attaching stenographic excerpts from their testimony as given on the trial of one of the related cases, could go no further than to affect their credibility by showing some contradictions in the testimony. The effect of this would be only as impeaching to whatever extent it might go. The rule seems to be well settled that new trials will not be granted for testimony merely impeaching.

No error appearing in the record, an affirmance must be ordered.

Affirmed.

ON REHEARING.