Conway v. State , 33 Tex. Crim. 327 ( 1894 )

HURT, PRESIDING Judge.

This is a conviction for burglary. The conviction depends mainly upon the testimony of Allen Forrester, a confessed principal in the crime. The burglary was committed on the night of February 4, 1893, it being Saturday night. Forrester swears most positively that Brazell, defendant, and he left Dallas on Friday evening, the 3rd of February, and went to Farmer’s Branch, at which place the burglary was committed; that they did not enter the house that night, but went down the railroad track about a quarter of a mile towards Dallas, and went to one side across the branch, and built a fire and laid down; that early Saturday morning Brazell went up to town to see whether May’s store was opened from the outside or inside, so as to tell whether any one slept in the store or not. “He came back, and reported that it was all right; that the store was opened from the outside. About 8 o’clock in tbe morning, Conway (appellant) went np to town to get bis breakfast. He came back, and we all three lay down the balance of the day, and the store was entered that night, Saturday, February 4th.” Now Eammersberg, though not positive, swears, that “in my best judgment it was Saturday, February 4,1893, I saw Brazell and Conway [in the city of Dallas].” Bobert Smith is positive that he saw Brazell in Dallas on Saturday, February 4, 1893. He states that it was about noon when he saw him. Hnder the facts of this case, if Brazell or appellant, or either, was in Dallas on the 4th day of February, 1893, then Forrester’s testimony is absolutely false, and the State’s case fails. To destroy the credibility of Smith, who was positive that Brazell was in Dallas on the 4th, over objections of defendant the State proved by Bob Cornwell that Smith was a confidence man; that the business followed by him was “playing the knife racket;” that he was a thief, etc. Hpon cross-examination, the State could ask Smith such questions as would be calculated to elicit the facts; namely, that he was a confidence man, followed the occupation of working the knife racket, and was a thief. But if Smith, though compelled to answer the questions, should deny that he pursued such an occupation or wás a thief, the State would be at its end, and could not thus, this being a collateral matter, prove by others that he did follow such a business, or was a common thief. And if, Smith denying this, the State could not prove them by other witnesses, certainly she could not make such proof as a part of her case as original evidence.

It appeal’s from the statement of facts that Forrester, in his testimony in chief, stated: “After being in jail about a week, I sent for Sheriff Cabell, and told him I desired to plead guilty. I gave him a description of Conway and Brazell; but I did not remember their names exactly, and told him how we committed the burglary and everything as I have here told to the jury. I took him over to the Phoenix hotel, where we had stopped, and showed him the hotel register and the room we occupied.” This attempt to sustain its witness was made by the State before he was even cross-examined by counsel for the defense. This evidence was introduced by the State as a part of the State’s case, and was evidently used for the purpose of corroborating the witness. Was such evidence, under the circumstances, admissible? It was not. Whart. on Ev.

As before remarked, this testimony was obtained from Forrester in his examination in chief, and of course before the witness was cross-examined. No principle in the law of evidence is better settled than the one enunciated in the rule that testimony in chief of any kind, tending merely to support the credit of the witness, is not to be heard except in reply to some matter previously given in evidence by the opposite party to impeach it. When this evidence was introduced, nothing had been given in evidence by-defendant to impeach the credit of tbe witness, and it was for that reason clearly incompetent. The United States v. Holmes, 1 Cliff., 105.

Cabell’s testimony as to what Forrester said and did was of the same character, and should have been rejected. Why? Because the statements to Cabell were made after the promises of immunity from pun-, ishment may have been made, or after the witness may have formed the intention of becoming a witness for the purpose of obtaining a dismissal of the case against him, or having awarded against him a mild or moderate punishment. If counsel for appellant had attempted or succeeded in showing that the witness had been promised assistance from Cabell, or that the witness had adopted this course for the purpose of receiving a light punishment, then the State would have had a right to show — prove—that before such an inducement had been offered in this case, before the witness sent for Cabell, or before the witness conceived the intention to become a witness, and obtain a light punishment, he had made the statements as sworn to on the trial. But the State would not have had the right to sustain the credit of her witness by proving similar statements made after the promises were made, or after hope sprung into the mind of the witness to obtain a moderate punishment by being a witness in the case. See this principle settled in Wharton on Evidence (2d ed.), section 570, and authorities there cited. Condensed, if the attempt is made, whether successful or not, to prove that a witness has testified (on the trial) under corrupt motives (improper influences), the party relying on his evidence can prove, that before these tempting influences could have affected the witness, he made in substance the same statements as those sworn to by him on the trial. But no statements made after such influences may have affected the witness can be introduced in evidence to support his credit. We are not treating of rape or assault to commit rape. The testimony of Bammersberg and Robert Smith tends very strongly to prove that defendant was not at Farmer’s Branch on the 4th of February, 1893. The circumstances of this case are such as to make it certain that if either Brazell or appellant were in Dallas on that day they did not commit the burglary. This being the state of the case, the court should have instructed the jury upon the law applicable to a case in which proof of alibi was adduced. This was not done, and to this omission in the charge counsel for appellant excepted. The exception was well taken. A vast amount of evidence was introduced for the pui’pose of corroborating'Forrester, the confessed accomplice, not with respect to any fact or circumstance which connected appellantwith the crime, but which tended to prove that witness was at the place of and participated in the crime. That Forrester was one of the party that committed the burglary is not questioned. This fact is not denied by appellant; but notwithstanding this, the State exercised all its energies in corroborating this accomplice in re gard to these immaterial facts. Under these circumstances, counsel for defendant requested the court to instruct the jury to the effect that corroboration with respect to these immaterial facts was not sufficient. To be corroborative, the evidence from other witnesses must tend to connect defendant with the crime. These instructions present the issue very sharply, and under the circumstances of this case should have been given.

For the reasons specified, the judgment is reversed and cause remanded for another trial.

Reversed and remanded.

Judges all present and concurring.