Clay v. State , 161 Tex. Crim. 351 ( 1955 )

MORRISON, Presiding Judge.

The offense is the possession of whiskey, wine and beer in a dry area for the purpose of sale; the punishment, one year in jail and a fine of $500.00.

Sheriff Whisnand testified that he went to an apartment occupied by Sammy and Jesse Riggins one Saturday night and there found a quantity of intoxicants, that he arrested them and confined them in jail until the following Thursday, at which time the Riggins boys made sworn statements that the intoxicants were not theirs but belonged to the appellant, who was shown to be the brother of their landlord. The sheriff stated that he then released the Riggins boys and filed an accusation against the appellant.

Both Sammy and Jesse testified that after they rented the apartment the appellant made an arrangement with them to keep intoxicants in their clothes closet.

Appellant denied that the intoxicants were his or that he had made any arrangement with the Riggins to keep the same for him.

By Bill of Exception No. 2 the appellant complains that the state was permitted to bolster the testimony of the sheriff.

On cross-examination the sheriff was asked to explain why he would turn loose two men whom he had found in possession of contraband and file a charge against another against whom he had no evidence other than the word of the two. On re-direct examination we find the following:

“Q. Pat has asked you some questions about your turning these men loose. Do — state whether or not you make it a practice to file complaints against anybody for anything unless you think they are guilty?

“MR. BEENE: That calls for a conclusion. It is bolstering himself and highly improper.

* * * *

“MR. HOLT: The question was whether or not he made a practice of filing against anybody for any offense unless he thought they were guilty.

“MR. BEENE: And my objection is that it is self-serving declaration and a declaration in an attempt to bolster his own testimony and it is prejudicial to this man’s rights and that’s the thing these men are trying — whether or not this man is innocent or guilty. In other words, it is the province of this jury.

“MR. HOLT: I think it is in answer to what he has brought out on cross-examination.

“MR. BEENE: Do you overrule?

“THE COURT: Yes.

“MR. BEENE: Note our exception.

“Q. I will begin — just answer the question. Whether or not you ever filed a complaint on anybody for any offense unless you think they are guilty of that offense?

“MR. BEENE: I reiterate and insist on an objection to having the question answer. . . .

“THE COURT: Overruled.

“MR. BEENE: Note our exception.

“A. Never in my life have I filed on any man I thought was not guilty. I don’t work that way.”

Attention is again called to the fact that the sheriff first arrested Sammy and Jesse Riggins and, upon their sworn denial of guilt, released them and arrested the appellant.

The above testimony of the sheriff was tantamount to an expression of opinion that the appellant was guilty.

In Parham v. State, 156 Texas Cr. Rep. 578, 244 S.W. 2d 809, in discussing a similar type of question and answer, we said:

“We conclude that this was both an effective and improper method of bolstering the State’s witness.”

For the error set forth above, the judgment is reversed and the cause remanded.