Bryant v. State , 109 Tex. Crim. 32 ( 1927 )

It is appellant's contention that we were in error in the disposition of the matter complained of in bills of exception three and four which relate to the admission in evidence of appellant's confession, wherein he admitted the taking of gasoline, a jack and license number from another car. The objections to such part of appellant's confession were that it showed another offense and impinged on appellant's plea for suspended sentence. The original opinion was evidently based on appellant's own statement that he and his companion had permission from the owner of the car to remove such things and therefore constituted no offense. However, if appellant be right in his view that such transaction revealed another offense the proof of it in the present case was not erroneous. Appellant was charged with the burglary of a garage in which four automobile casings were stolen. Although appellant had plead guilty the state and had the right to prove its case and trace the stolen property. The stolen casings were placed on a car which was in appellant's possession and in which appellant and his companion intended to make a trip to an adjoining county. In order to operate the car other things than the casings were necessary so appellant and his companion took the gasoline, jack and license numbers from another car for use of the car on which the stolen casings had been placed. In tracing the stolen casings the matters complained of developed and became a part of the transaction. Under the peculiar circumstances of the case no error occurred in admitting the evidence. Chester v. State, 300 S.W. 57, and cases therein cited. Also Underhill Crim. Ev. (3rd. Ed.), Sec. 152, pp. 196-199. In any event appellant is in no position to complain because of the admission of the part of his confession objected to. Before the state offered it appellant without objection had testified to everything contained in the confession. (Authorities upon this point are collated at the end of the concluding paragraph of this opinion.)

In our original opinion the matter complained of in bill of exception No. 5, was held to have been harmless in view of the evidence developed by appellant himself on cross-examination of the state's witnesses Hall and Morgan. It is pointed out in the motion for rehearing that such holding must have been based upon a misapprehension of the record as to the testimony of said witnesses. In this respect we think appellant is right. Hall and Morgan were character witnesses for the state, both testifying that appellant's general reputation was bad. On cross-examination Morgan did not testify that appellant had ever been charged with theft save in the particular case for which he was then on trial. Hall testified on cross-examination that he had heard appellant had been charged in the city court with theft and had been put in jail for it, but witness said he had not filed such complaint and did not know the date of such accusation. To overcome the imputation cast upon him by this testimony, appellant called the Deputy County Clerk of the county who testified that he had examined the criminal records of the county back to a time when appellant was only nine years old, and that the records of the court showed no charge of any kind against appellant. The District Attorney admitted that no charge of theft had ever been lodged against appellant in the District Court. If any charge of theft had ever been lodged in the City Court that tribunal had no jurisdiction to finally dispose of it and the evidence of the Deputy County Clerk excluded the idea that any such accusation had been merged into a legal charge in a court of competent jurisdiction. It was in this condition of the record that the evidence of Posten as set out in our original opinion was admitted. We were in error in disposing of the objection to Posten's testimony upon the ground stated in our original opinion in view of the matters heretofore stated.

We are in accord with appellant's contention that Posten's testimony was not admissible upon the issue of appellant's general reputation raised by his request for suspended sentence; such general reputation could not be proven by specific acts of misconduct. Johnson v. State, 92 Tex. Crim. 582,241 S.W. 484, and authorities therein cited; Fountain v. State, 90 Tex.Crim. Rep., 241 S.W. 489; Williford v. State, 95 Tex.Crim. Rep., 255 S.W. 170; Lovelady v. State, 95 Tex.Crim. Rep., 255 S.W. 415; McKnight v. State,98 Tex. Crim. 355, 265 S.W. 892; Wright v. State, 98 Tex. Crim. 513, 266 S.W. 783; Pettiett v. State, 100 Tex. Crim. 255,272 S.W. 473; Elkins v. State, 101 Tex. Crim. 377,276 S.W. 291. We are likewise in agreement with appellant on the point that Posten's evidence was not admissible to impeach appellant as a witness. The incident related by Posten was certainly not a felony. Neither was it a misdemeanor involving moral turpitude. It must be one or the other before it is usable for purposes of impeachment. (Branch's Ann. Tex. P. C., Sec. 167.) Notwithstanding our agreement with appellant in the legal propositions mentioned we find the record in such condition that we cannot base a reversal upon the admission of Posten's evidence. Upon cross-examination appellant was asked about having paid a fine in the city court and without objection testified as follows:

"They got me for something. They did not tell me. It was for disturbing the peace. They accused me of peeping through a window, on some women folk. I think that is what it was. They fined me thirty-seven dollars for that and I paid eight dollars on it. I plead guilty to it."

Everything Posten gave in evidence was already before the jury by appellant's own admission. Parker v. State, 91 Tex. Crim. 68, 238 S.W. 943; Scharff v. State, 99 Tex. Crim. 605,271 S.W. 83; Gonzales v. State, Tex.Crim. Rep. 299, S.W. 901. We quote from Wagner v. State, 53 Tex. Crim Rep. 306,109 S.W. 169:

"It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to. See Rogers v. State, 26 Tex.Crim. App. 404; Walker v. State, 17 Tex.Crim. App. 16; Johnson v. State, 26 S.W. 504; Stephens v. State, 26 S.W. 728; Logan v. State, 17 Tex. Crim App. 50; West v. State, 2 Tex.Crim. App. 460; and Carlisle v. State, 37 Tex. Crim. 108. "

Later cases following Wagner are Gurski v. State, 93 Tex. Crim. 612, 248 S.W. 353; Osborne v. State, 106 S.W. 310,292 S.W. 240; McLaughlin v. State, No. 11286, opinion delivered February 15, 1928.

The motion for rehearing is overruled.

Overruled.

ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.