Meredith v. State , 115 Tex. Crim. 447 ( 1929 )

CONCURRING OPINION. While not dissenting from the result announced, concurrence in some of the expressions made in the course of the original opinion is withheld. That the general rule of evidence excludes proof against one accused of crime of other offenses committed by him is not open to question. The reasons for the rule have often been stated in the judicial decisions and by text-writers. See Underhill's Crim. Evidence, 3rd Ed., Sec. 150. That to such general rule there are numerous exceptions is established with a certainty equal to that which applies to the rule itself. Underhill's Crim. Evidence, Sec. 151. In the application of the rule general statements often found in the opinions such as that in Frazier's case, 246 S.W. 391, namely, "every circumstance reasonably calculated to illuminate the transaction in question, and to make probable the guilty connection therewith of the accused, should be allowed to go to the jury" must be construed in the light of the evidence in the particular case and the established rules of evidence limiting and restricting the circumstances under which certain classes of evidence are receivable. A statement by Mr. Bishop in his Criminal Procedure, quoted with approval in the opinion of this court in McKinney v. State, 8 Tex. Cr. App. 640, seems to the writer to come as near comprehending the subject as is possible in a general statement. The language of the opinion follows:

"Mr. Bishop announces the correct doctrine to be, 'that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet, whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible, and it is also admissible if it really tends thus (as in the facts of most cases it does not) to prove the act itself.' 1 Bishop's Cr. Proc., sec. 1067."

The facts in the case from which the quotation is taken and the ruling of the court thereon seem to illustrate the soundness of the quotation in the same opinion from Greenleaf on Ev., Sec. 53, as follows:

"In some cases, however, evidence has been received of facts which happened before or after the principal transaction, which had no direct or apparent connection with it; and therefore their admission might seem at first view to constitute an exception to this rule (which excludes evidence of collateral facts). But those will be found to have been cases in which the knowledge or intent of the party was a material fact on which the evidence, apparently collateral and foreign to the main subject, had a direct bearing, and was therefore admitted."

The facts in the present case seem to render the evidence of the previous offense admissible though apparently not within the exceptions to the rule excluding proof of other crimes of the most general applications. In giving sanction to the conclusion stated in the original opinion the view is expressed that as a precedent the opinion should not be treated as extending the general rule but rather as an exceptional case restricted by the particular facts upon which the announcement is made.