Moore v. State , 39 Tex. Crim. 266 ( 1898 )

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

When the case was called for trial, Sam Gaines was introduced as a witness for the State. On being called by the State, the defendant asked the witness if he had not been convicted of a felony, and sentenced, and had never been pardoned. The witness answered that he had been so convicted, and had not been pardoned. The defendant then asked that the trial be postponed, in order to secure a certified copy of the conviction of the witness, which is alleged to have occurred in Bell County. The postponement was refused, and an exception was reserved. In the application for a postponement it is stated that the defendant first discovered the fact that the witness was an unpardoned convict while the jury was being impaneled. The application for postponement was not made until after the witness had been examined on his voir dire by the defendant. The defendant should have applied at once, when he discovered the incompetency of the witness, for a postponement, and not delayed until after the jury had been impaneled in the case, and his plea of not guilty entered. But, even had he used the proper diligence, we do not believe it presents a reversible error. It is conceded that the record evidence of the conviction and sentence is the best evidence, and that the manner of proving the witness' incompetency by parol is secondary evidence. But the State did not object to this manner of proving the incompetency of the witness, and permitted it to be introduced unchallenged. While this is not the best evidence, yet, if the opposing side does not object, the fact can be proved in that manner. See White v. State,33 Tex. Crim. 177, and authorities there cited. Had the State interposed an objection to this manner of disqualifying the witness, that objection ought to have been sustained, but such objection was not raised. So the incompetency of the witness was shown, and the defendant should then have objected to his testifying in the case. But he did not do so, and thereby waived any right that he had in the matter. This examination by the defendant is not claimed nor shown to have been resorted to for the purpose of impeachment. He was questioned before he testified, and as soon as offered by the State as a witness. We do not think the court erred in refusing to postpone the trial of the case, under the circumstances, in order to secure the record evidence of the conviction of the witness.

Bill of exceptions number 2 recites that the State introduced the witnesses Davidson, Myams, and Gaines, who testified "that the defendant was sent for, and brought into the saloon of Davidson, and was asked by Davidson if he let Gaines have the watch; that he then stuck it out, and showed it to the defendant, and the defendant stated that he did not," — which testimony was objected to because the defendant was not warned. The bill does not show the defendant was under arrest, nor that he was carried to the point by force, or that he was compelled to go to the place designated. That he was sent for, and brought to the place, does not state or indicate that the party was carried there against his will, or that he was under arrest. We do not see how this matter could possibly have been injurious to the appellant, for the testimony shows that he denied having the watch. The bill does not show what bearing his having or not having the watch may have had upon the trial, or his connection with the offense charged. If we look to the statement of facts, however, we discover that at Davidson's saloon the defendant was shown the watch which was claimed to have been stolen from the house burglarized. That watch he denied ever having had in his possession. But this bill does not undertake to connect that watch with the watch taken from the burglarized house. So the bill is very indefinite, to say the least of it; and, as presented, there was no error.

The court charged the jury, in regard to circumstantial evidence, that "the State relies for a conviction upon circumstantial evidence alone, and, in order to warrant a conviction upon such evidence, each fact necessary to establish the guilt of the accused must be proved by competent evidence beyond a reasonable doubt; and the facts and circumstances proved should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and producing in your minds a reasonable and moral certainty that the accused committed the offense." This charge was excepted to by appellant, and a special instruction requested in the identical language given by the court, except it closed with the expression, "that the accused, and no other, committed the offense." Error is assigned upon the court's charge, and the refusal to give the special instructions. We find no error in this. If the facts were inconsistent with any other reasonable hypothesis or conclusion than that of the defendant's guilt, and produced a reasonable and moral certainty that the accused committed the offense, it would be a strict compliance with the law as laid down in Smith v. State, 35 Texas Criminal Reports, 621. The judgment is affirmed.

Affirmed.