Ewing v. State

In the motion for rehearing the court is criticised as being unduly technical in ruling on Bills of Exception Nos. 3, 6 and 7. These bills relate to the ruling of the court in receiving in evidence certain testimony drawn out on the cross-examination of the appellant's witnesses.

Bill No. 3 complains that Leonard, a witness for the appellant, had testified that the general reputation of J. E. Brand for truth and veracity in the community in which he lived was bad. On cross-examination state's counsel asked the witness if it was not the drinking, rowdy element in the community that had made remarks adverse to the good reputation of Brand because of his activities against the liquor traffic.

Bill No. 6 reflects the fact that Bert Turner, a witness for the appellant, gave testimony to the effect that the general reputation of the witness Brand was bad, and on cross-examination, state's counsel asked the witness Turner if he had "served this week on the jury", to which the witness replied in the negative.

Bill No. 7 relates to the witness W. C. Black, the justice of the peace, who had testified that the general reputation of the witness Brand for truth and veracity was bad. On cross-examination by the state, Black was asked if the people who were giving testimony adverse to Brand's reputation were not the whisky-drinking element, to which the witness replied that he did not think it was.

It is understood to be a general rule that a bill of exception complaining of the impeachment of a witness is incomplete if it fails to show that the impeached witness gave material testimony against the party complaining of the court's ruling. Underlying the rule is the principle that to require a reversal, injury must be shown. The ruling of the court in the present instance is in accord with many decided cases. See Kynock v. State, 103 Tex.Crim. Rep., 280 S.W. 222, and cases collated; also Hunter v. State, 96 Tex.Crim. Rep.,257 S.W. 1104; Conger v. State, 63 Tex.Crim. Rep.,140 S.W. 1112; Widener v. State, 109 Tex.Crim. Rep.,5 S.W.2d 138. See, also, Branch's Ann. Tex. P. C., page 131, sec. 207, subds. 2, 5 and 6.

Touching the matter in hand, we refer to the opinion in the case of Brady v. State, 119 Tex.Crim. Rep.,44 S.W.2d 373, from which the following quotation is taken:

"Under the authorities, a character witness may be asked whether he had heard of conduct which would be inconsistent with the character attributed by the witness to the party inquired about, as affecting the weight of the witness' testimony. The court committed no error in permitting the question. Underhill's Cr. Ev. (3rd Ed.), sec. 81; Johnson v. State, 91 Tex.Crim. Rep., 241 S.W. 484; Wright v. State, 98 Tex.Crim. Rep., 266 S.W. 783."

In the light of the principle stated in the quotation, we are not prepared to say that the cross-examination of the character witness referred to in the bills mentioned was of such nature as would justify the reversal of the judgment, even if it were shown by the bills that Brand gave material testimony against the appellant.

The case of Goss v. State, 104 Tex.Crim. Rep.,284 S.W. 578, 579, to which we have been referred, is not understood to support the appellant's contention that the bills of exception mentioned show error warranting or requiring a reversal of the judgment. In the Goss case, supra, witnesses who had testified to the good reputation for peace and quietude of the accused on trial for murder were, upon cross-examination, permitted to testify that they had observed the appellant committing other offenses discrediting to his character in the particular mentioned. The soundness of the conclusion reached in the Goss case, supra, is not open to question. It appeared from the bills that the injury developed against the accused was, evidence of extraneous offenses which violated the rule against detailing under such circumstances specific acts of misconduct of the accused on trial. We fail to perceive the analogy of the present case to the Goss case to which reference has been made above.

Touching the complaint reflected by Bill No. 8, in permitting a witness to identify a bottle of whisky by the label which he had placed on the bottle, reference is made to Caldwell v. State,117 Tex. Crim. 145, 35 S.W.2d 165, and Wells v. State,117 Tex. Crim. 338, 35 S.W.2d 167, in both of which cases the ruling of the trial court upon a state of facts substantially the same as those in question was upheld. The trial court received in evidence the testimony of one who claimed to have bought whisky from the accused and identified the bottle by the label which the witness recognized.

To the best of our ability, we have reviewed the record in the light of the appellant's motion for rehearing and are of the opinion that the record presents no reversible error.

The motion is overruled.

Overruled.