Beland v. State , 86 Tex. Crim. 285 ( 1919 )

The State brings this case before us upon its motion for a rehearing. It is claimed that we were wrong in holding that the trial court erred in refusing to permit appellant to show that the prosecuting witness for the State was an habitual user of morphine, cocaine, etc. The State's contention is that unless it be shown that the witness was under the influence of the drug at the time he testified, the evidence to show that he was a user of such drugs, would not be admissible.

We adhere to our former opinion in this matter, and cite the case of Anderson v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 282, in which this Court held such evidence admissible as affecting the credibility of a witness and the weight of the testimony.

The State also contends that the alleged newly discovered evidence for appellant, was cumulative, and for that reason the motion for a new trial on this ground was properly overruled in the court below; and we are referred to the list of authorities cited in section 203, of Mr. Branch's Annotated Penal Code.

One Mildred Criner was the only fact witness for the appellant, and if her testimony was true, the alleged theft was committed by the State's main witness, and appellant was not guilty. The cross-examination of this witness by the State, tended strongly to attack her character and reputation, as well as to show her favorable inclination toward the appellant.

In his motion for a new trial, appellant set up as newly discovered evidence, certain matters, and attached the affidavits of two witnesses, setting forth facts which strongly tended to sustain the testimony of Mildred Criner in its most material points; and the facts contained in said affidavits materially support the appellant's defense, and show the attitude of the said State's witness. Such testimony, coming from disinterested witnesses, against whose character and interest in the case, no charge is made, would go beyond mere cumulative evidence, and the appellant was entitled to the benefit of the same.

Believing our original opinion was correct, the motion for a rehearing is overruled.

Overruled.