Elliott v. State , 105 Tex. Crim. 8 ( 1926 )

This case was not reversed for any error relating to the alleged insanity of the accused and we only referred to said matter for the guidance of the court upon another trial if had.

The state asked practically all those witnesses for the defense who swore to the good reputation of appellant for peace and quietude, if they had not heard of appellant having cursed and abused Mr. Lawler, an aged man. Said witnesses uniformly denied having heard of such occurrence. Had they admitted having heard of same, the only legal effect of such admission would have been to weaken to that extent their testimony as to appellant's good reputation. When appellant took the stand he did not refer on direct examination to the matter of any trouble between himself and Lawler. On cross-examination the state asked him about same and appellant denied having cursed or abused Lawler, but explained the incident. This should have ended the inquiry. It was purely collateral and in no other way germane to any issue in this case. One who is cross-examined in reference to an immaterial matter and replies, may not be impeached by proof of the falsity of his answers. The questioner, as to such collateral matter, is bound by the answer of the witness. Wilson v. State, 37 Tex.Crim. Rep.; Hall v. State, 43 Tex.Crim. Rep.; Holland v. State,60 Tex. Crim. 117.

Upon further consideration of the record in the light of the motion we have concluded that bill of exceptions No. 24 complaining of the use in testimony of the clothing worn by prosecuting witness at the time of the affray, shows no error in view of the qualification of the learned trial judge thereto.

We did not intend to change the well established holding that the enforcement of the rule as to witnesses is for the sound discretion of the trial court, unless there be further need for the testimony of a witness who has given his evidence, he may be excused from the rule. The bill of exceptions complaining of the court's action in excusing the prosecuting witness herein from the rule after he had given his testimony, does not present error. The existence and enforcement of the rule, in regard to witnesses, is not to be used as a means of keeping persons out of the court room, but to prevent the testimony of witnesses not used from being affected by hearing others give their testimony as to the matters inquired about. The prosecuting witness having testified and there being no assertion of either side that they desired to use him again, it was perfectly proper for the court to excuse him. When called to testify by the state in rebuttal it became a question for the trial court to pass upon as to whether the testimony which they sought to elicit from him was such as that it might have been affected or influenced by what he had heard after being excused from the rule. If such testimony appeared to be relative to matters about which testimony had been given after said witness was excused, it was very doubtful whether he should have been permitted to testify. Such does not seem to be the case.

We think the case correctly reversed for the other errors discussed in the opinion, and the state's motion for rehearing will be overruled.

Overruled.