Griffin v. State

Hurt, Judge.

This conviction is for murder in the second degree, with the punishment fixed at confinement in the penitentiary for five years.

The record contains the following bill of exceptions: “The State placed upon the stand Frank Waters, who testified that, a short while before the killing of Van Chambers, the defendant told him, as he, the defendant, was on his way to attend a party that night, that he was going to the party expecting to find the deceased, Van Chambers, there, and if he could get him, the said Chambers, out by himself he would kill him. The defendant thereupon introduced eighteen or twenty witnésses to impeach the said witness, Waters, by showing that the general reputation of the said Waters for truth and veracity in the neighborhood was bad, and, from that reputation, the said Waters was not entitled to be believed under oath.

“The State then introduced some ten or more witnesses to sustain the reputation of said Waters, among others Dave Ballow, Polk Snow, D. S. Chandler, T. J. Epperson, W. J. Wakefield and L. F. Gerlock, to whom the State asked this question: “Do you know the witness Prank Waters?’ They said: ‘Yes.’ Are you acquainted with his reputation for truth?’ They said: ‘Yes,’ and that it was good. On cross examination, they were asked by defense: ‘Did you ever hear his reputation for truth discussed?’ They said: ‘Fever until yesterday.’

“The State then asked each of said witnesses: ‘Have you ever heard the reputation of the said Waters for truth and veracity impeached or impugned before this?’ To which the defendant, by counsel, objected, because the question was improper and not confined to the knowledge of said witnesses as to the general reputation of the said Waters in the neighborhood or community where he lives. The objection was overruled, and the defendant excepts to the ruling,

“The State then asked each of the following witnesses (naming seven), ‘are you acquainted with the reputation of the witness Waters for truth and veracity?’ which, being answered in the affirmative, they were further asked if it was good or bad; which, being answered ‘good,’ they were further asked if lie, the said Waters, was entitled to be believed under oath; to each and all of which said questions the defendant excepted, because they were not proper in determining the general reputation of said witness in the neighborhood where he lives for truth and veracity, and was permitting the witnesses to testify, not as to the general reputation of Waters for truth and ver_ acity, but as to their own opinion and belief; which objection was overruled by the court, and to which defendant excepted. ”

Two objections were made to the questions and answers:

I. That the witnesses did not state that they were acquainted with. Waters’s general reputation in the neighborhood in which he then lived.

II. That the witnesses were induced to, and did state their opinion as to whether he was entitled to credit, not from his general reputation for truth, but from their own knowledge or ■opinion of the witness.

This question is very elaborately discussed by Justice Bell in Boon v. Weathered, 23 Texas, 675. He states the rule to be “that the inquiry should practically be restricted to the general character of the impeached witness for truth * * * If the impeaching witness states that he is acquainted with the gen-oral reputation of the impeached witness for truth in the community where he lives, he may then properly be asked whether that general reputation is such as to entitle the witness to credit on oath. * * * Any other form of words may be used which do not involve a violation of the cardinal principles that the inquiry must be restricted to the general reputation of the impeached witness for truth in the community where he lives or is best known; and that the impeaching witness must speak from general reputation, and not from his own private opinion.”

Opinion delivered October 13, 1888.

We are of the opinion that the questions propounded to the impeaching witnesses were not calculated to, nor did they, elicit the proper answers; that the questions and answers were violative of the cardinal principles governing this subject. First, the inquiry must be restricted to the general character of the party sought to be impeached; second, that the impeaching witnesses must speak from general reputation, and not from their private opinions, as to whether the character of the impeached witness is good or bad for truth; or as to whether the general reputation of the impeached witness is such as to entitle him to credit on oath.

There is no venue proved by direct or circumstantial evidence.

We call the attention of the learned trial judge to the fact that malice is not defined to the jury. As to the necessity of defining malice see Jones v. The State, 5 Texas Ct. App., 397; Toomey v. The State, Id., 163; Pharr v. The State, 7 Texas Ct. App., 339; Harris v. The State, 8 Texas Ct. App., 90; McKinney v. The State, Id., 353; Hayes v. The State, 14 Texas Ct. App., 330.

The judgment is reversed and the cause remanded.

. Reversed and remanded.