McCray, Alias Rosson v. State , 38 Tex. Crim. 609 ( 1898 )

Appellant was convicted of a simple assault, and his punishment assessed at a fine of $25, and prosecutes this appeal.

Appellant objected to the admission of testimony regarding the assault on Nancy Sanders both before and after the alleged assault on Eunice House. We gather from the record that these assaults were all a part of the same transaction. Appellant assaulted Nancy Sanders at the residence of Eunice House. She interfered, and was, in turn assaulted by appellant. She fled, and then appellant continued the assault on Nancy Sanders, who also fled from the house. The assault on Nancy Sanders is a part of the res gestae, and was evidence pertinent to show the animus of the appellant in his assault on the prosecutrix, and to show how said assault came about. When the witness Eunice House was on the stand, appellant asked her, on cross-examination, if she and Nancy Sanders were not public prostitutes. The county attorney objected, and his objection was sustained. What the answer of the witness would have been is not made to appear. Consequently, we can not consider this bill of exceptions. The some observations apply to the bill with reference to the question asked this witness as to whether or not she was addicted to the use of cocaine and morphine. It is not shown what the answer of said witness would have been. We fail to see how any answer would have been pertinent and relevant to any issue in this case.

In our opinion, it was competent for the county attorney, on cross-examination, to prove by the defendant, who took the stand as a witness on his own behalf, that he had previously been sent to the reformatory for the offense of sodomy; his answer simply going to his credit.

It was not competent for the defendant to prove by the witnesses Jonas Gooden, Bob Dunning, and others that the prosecuting witness (Eunice Homse) and Nancy Sanders were common prostitutes. If said testimony was offered to impeach the witnesses Eunice House and Nancy Sanders, then we do not believe that the same was competent for that purpose. We would not be understood as holding that on the cross-examination of said witnesses Eunice House and Nancy Sanders, it would not have been competent to prove by them that they were common prostitutes. We are aware that this question has been decided differently in different States; some of the States holding that such testimony was admissible on cross-examination, and others the contrary. See 3 Jones Ev., secs. 842, 843; 29 Am. and Eng. Enc. of Law, p. 805. In Stayton v. State, 32 Texas Criminal Reports, 33, it was held that this character of testimony was not competent, but in that case the decision shows that the bill did not properly present the question. In Brittain v. State, 36 Texas Criminal Reports, 406, we held that it was competent, on the cross-examination of a witness, to prove that such witness had been convicted of a felony, or of any offense involving moral turpitude. We intimated in that case that the examination upon this matter would be confined to a cross-examination of the witness proposed to be impeached by this character of testimony, and that the party cross-examining such witness would have to be satisfied with the answer of the witness upon the subject, and a predicate for the contradiction of a witness could not be laid on this character of evidence. In McGrath v. State, 35 Texas Criminal Reports, 413, we held that such evidence was admissible, and we see no reason why this should not be the rule. In common experience it is known that persons who are so morally degraded as to ply their vocation as common prostitutes are not on a plane with the mass of people who follow legitimate and honorable vocations, in the matter of integrity. As a general rule, they are no more capable of telling the truth than one who has been convicted of a felony, or of some misdemeanor involving moral turpitude, and they are not more worthy of belief than such a one; and we see no good reason, when a witness is tendered by either party, and testifies as to some material issue in the case, why it should not be permitted, on cross-examination, to prove that he follows some illegal or disreputable vocation for a living. As for that matter, we think it is within the sound discretion of the court, always, on the cross-examination or a witness, to permit to be shown the calling or business followed by such witnesses, his residence, etc. As was said by Campbell, J., in Wilbur v. Flood, 16 Michigan, 40-43 (cited in Thompson on Trials, p. 404): "It has always been found necessary to allow the witnesses to be cross-examined, not only upon the facts involved in the issue, but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given, where circumstances seemed to justify it, in allowing a full inquiry into the history of witnesses, and into many other things tending to illustrate their true character. This may be useful in enabling the court or jury to comprehend just what sort of person they are called upon to believe, and such knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract from them the whole truth on the merits. It can not be doubted that a previous criminal experience will depreciate the credit of a witness, to a greater or less extent, in the judgment of all persons, and there must be some means of reaching this history. The rules of law do not allow specific acts of misconduct, or specific facts of a disgraceful character, to be proved against a witness by others. * * * Unless the remedy is found in cross-examination, it is practically of no account. It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. * * * We think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility, * * * He must be better acquained than others with his own history, and is under no temptation to make his own case worse than truth will warrant. There can, with him, be no mistake of identity. If there are extenuating circumstances, no one else can so readily recall them. We think the case comes within the well-established rules of cross-examination, and that the few authorities which seem to doubt it have been misunderstood, or else have been based upon a fallacious course of reasoning, which would, in nine cases out of ten, prevent an honest witness from obtaining better credit than an abandoned ruffian."

While we agree to the rule that a witness on cross-examination can be interrogated as to matters which involve moral turpitude, either on account of conviction for crime, or on account of some avocation, yet we would not be understood as holding that a witness, on such cross-examination, can be contradicted or impeached in regard to such matters, nor that other witnesses may be called originally to prove such matters against a witness. As stated by the authorities, this would involve a trial of collateral issues, which would often prove interminable. And we hold that the court did not err in excluding the witnesses called to prove that the State's witnesses were common prostitutes.

Appellant also objected to the charge of the court predicated on an abandonment of the difficulty. He insists that there was no evidence of such abandonment, and that a charge on that subject was calculated to injure the rights of appellant. While it appears that the salient issue in the case, so far as the State was concerned, was an unjustifiable assault on the prosecutrix because she interfered when appellant was making an assault on Nancy Sanders in the house of the prosecutrix; and, on the part of the defendant, that the prosecutrix first assaulted him with a club, and in self-defense he was compelled to cut her wth a knife — yet there is some testimony tending to show that the prosecutrix may have (according to appellant's theory) unjustly assailed him in the first instance, but when he attacked her wth a knife she desisted and fled, and that he then cut her in the back. This theory is further enforced by the defendant himself, who, when asked on cross-examination why he cut Eunice House in the back after she had turned to run, stated that he did not know why. So we take it that the charge was justified by this phase of the testimony. The charge of the court on the right of the prosecutrix to eject the appellant if he was making a disturbance in her house, and used no more force for that purpose than was reasonably necessary, stated a correct legal principle, and was justified by the evidence, because she testified that, before she interfered in the (difficulty between appellant and Nancy Sanders, she requested him to leave her house, which lie refused to do. If she struck him subsequently, evidently she was justified in doing so; and it appears that she was not able, if she struck him with a club, as testified by him, to eject him from the house, for he appears to have remained master of the situation, with his knife, and compelled both the prosecutrix and Nancy Sanders to flee from the house. The judgment is affirmed.

Affirmed.