Dodson v. State ( 1946 )

Appellant insists that we misconstrued his bill of exception number one in disposing of it in our original opinion, in that the complaint was not against the proof that the dress of prosecutrix was torn and bloody, but was against the acts of the prosecuting attorney regarding the dress after the court had withdrawn it from the jury.

This bill is in question and answer form without a certification of necessity therefor, and had our attention been called to this the bill would not have been considered, but having discussed it in our original opinion we again examine it in the light of appellant's motion for rehearing.

It is apparent from the bill that the State's attorney while examining the prosecutrix had in his hand the dress which witness was wearing on the night she was assaulted. She identified as blood, stains on the dress called to her attention, and torn places in the dress, which blood and tears she said were not in the dress when she left with appellant and his companions; and testified that appellant and another of the boys tore that dress. At this point the State without objection from appellant introduced the dress in evidence. No objection was interposed on the ground that the dress was bloody. On cross examination it developed that the blood stains and torn places were the result of the mistreatment of witness in Oklahoma, and not after they crossed the river back into Texas. Because of that fact and on that ground appellant asked the court to instruct the jury "not to regard the dress in evidence." The bill recites that the motion was sustained and the "dress withdrawn from the sight of jury." It is apparent that the dress was again taken from the sack by the State's attorney who held it in his hands in front of the jury, and propounded other questions regarding the blood on the dress. Objection was interposed that "the waving of the dress before the jury was prejudicial." The court sustained the objection, directing the State's attorney not to wave the dress, but to place it back in the sack, which was done. After the court had withdrawn the dress as evidence the State's attorney should have been governed by the court's ruling, and not have again exhibited it before the jury. However, we fail to discover anything which came to the knowledge of the jury by such act which they did not already know from what had occurred. Under the circumstances we think the incident should not be regarded as presenting reversible error.

In his motion for rehearing appellant calls to our attention that in disposing of bill number eight we confused it with others which complained of admitting in evidence proof of what occurred in Oklahoma. Bill number eight relates to an entirely different matter. It recites that appellant was a stranger in Grayson County, as was also Mrs. Jones whom appellant used as a witness to the good reputation of appellant. This witness was not even cross examined, but appellant sought to show by her that she was related to several prominent people who were well known in Grayson County. Upon objection from the State the proposed evidence was excluded. It is appellant's contention that he was entitled to show this in order to "give weight to her testimony." Appellant used ten or twelve witnesses to prove appellant's good reputation, and the issue was not contested by the State. We are aware of the rule which permits a witness to be supported in the event the adverse party attempts to impeach the witness, or is cross examined in such way as to raise an issue as to truth of the testimony given by said witness, and also as to the rule which permits an inquiry as to the business or vocation of a witness, but we are not aware that our court has ever held it admissible to go to the length here proposed. The general rule with the limitations thereon will be found referred to in Phillips v. State, 19 Tex. App. 158[19 Tex. Crim. 158]; Crook v. State, 27 Tex. App. 198[27 Tex. Crim. 198], (214); Payne v. State, 40 Tex. Crim. 290; Warren v. State, 51 Tex.Crim. R.; Jeffreys v. State, 51 Tex. Crim. 566; Coleman v. State, 90 Tex.Crim. R.; Jacobs v. State, 42 Tex.Crim. R.; Doucette v. State, 45 S.W. 801.

We remain of the opinion that under the facts of this particular case evidence of what occurred in Oklahoma was properly admitted. The court dealt with a somewhat similar state of facts in Mann v. State, 187 S.W.2d 665. The court limited a possible conviction to a transaction in Grayson County. The same limitation is found in the Mann case applicable to the facts there present.

Believing no reversible errors appear in the record, appellant's motion for rehearing is overruled.