DocketNumber: No. 21011.
Citation Numbers: 147 S.W.2d 227, 141 Tex. Crim. 220
Judges: HAWKINS, Presiding Judge.
Filed Date: 5/29/1940
Status: Precedential
Modified Date: 1/13/2023
In his motion for rehearing appellant urges with much earnestness that we were wrong in holding that bills of exception numbers three, four and five did not present reversible error.
The questions complained of in the said three bills are set out in our original opinion. It must be borne in mind that all the questions were answered in the negative. It was appellant's contention that the questions were asked with the purpose of prejudicing the jury against appellant; that the State had no evidence to substantiate the matters embraced in the question, and that they were unfounded. The record discloses that the Assistant District Attorney, Mr. Winborn, was conducting the cross examination and propounded the questions involved. The *Page 229 reasons which prompted the questions became the subject of investigation on the hearing of the motion for new trial, and Mr. Winborn's evidence on the subject follows:
"I have read the defendant's amended motion for a new trial in this case, and have familiarized myself with it and particularly the points raised in paragraph four, five and six thereof, wherein the defendant contends that I was not acting in good faith in asking Tony Vallone, a witness for the defendant, and also the defendant, Vincent Vallone, certain questions regarding certain conduct of the deceased, Thomas, and his friend, Strelau, prior to the killing of Thomas, and further contending that those questions were asked for prejudicial reasons with no information at that time as a predicate for propounding such interrogatories.
"I remember questioning the witness for the defendant, one Tony Vallone, and also the defendant, Vincent Vallone. I recall asking those questions. I did not ask them for the purpose of creating prejudice in the minds of the jury. I asked those questions because I had reason to believe that it did happen, from the information gained in the investigation conducted by the District Attorney's office and myself independently.
"I make this statement. There were two questions in which I had the information. The defendant testified that after the shooting that one of the reasons he went back into the 21 Club was to have his son washed up. I had information that the son left there and went into a barber shop over by the old city hall and washed up, and I asked Tony that question and he admitted that was true.
"As to the defendant, Vincent Vallone, I had information that, not Strelau, but that the deceased had been in that place a short time prior to that day and had won a sum of money, around two thousand dollars or twenty-two hundred dollars, and I asked him that question, if he hadn't been up there before, and he answered in the negative, and I pursued it no further; I accepted his answer and went no further. I asked him no further questions about that. I was simply seeking that information from the defendant himself. When he told me 'No,' I didn't go any further.
"I did ask substantially the question, to which objection is raised in paragraph four of defendant's motion, "And the reason of it was, didn't you find out they only had a small amount of money, and didn't one of you say "these cheap son of a bitches *Page 230 don't have any money"; didn't that happen?' I had information to the effect that that did happen.
"When I asked the question complained about in paragraph five of defendant's motion, 'Isn't it a fact that when they (meaning the deceased and Strelau) came in there (meaning said club) that day (meaning the time of the homicide) they started to gamble and it was discovered that between them they had only about eight or nine dollars, and weren't they bounced out one at a time and rolled down the steps?' I had information which I thought justified me in asking that, and I honestly believed it did happen.
"When I asked the defendant the question complained of in paragraph six of defendant's motion, 'And won some two thousand dollars,' I had information which I felt justified me in asking that.
"As to whether or not I could prove it or not, when I asked those questions, I was doubtful of being able to prove it under the rules of evidence. I had information that satisfied me that it did happen, but I was doubtful of being able to prove it; that is, have it in the shape that it would be admissible as evidence, and when I asked the defendant those questions I was assuming he would answer truthfully."
In view of the sworn testimony of Mr. Winborn to the contrary we would not be justified in assuming that the questions objected to were asked in bad faith or for an improper purpose.
In discussing objections urged to questions propounded to the defendant this court said in Patterson v. State,
"The questions which the appellant failed to answer in an affirmative way were not such as to bring them within the rule which condemns conduct on the part of the prosecution wherein it is sought to discredit the case of the accused and secure a verdict adverse to him by bringing before the jury damaging facts through irrelevant questions, or questions which obviously are not expected to elicit proof or lay a predicate for legitimate evidence. This rule is conducive to a fair administration of justice, and its violation has often been the subject of comment, and at times the cause for reversal. McIntosh v. State,
Giving effect to the rule with the qualification in mind, and assuming under the circumstances stated that the questions were propounded in good faith based on information which led counsel for the State to believe the matters involved in the questions were true, suppose the witness had answered the questions in the affirmative. Certaintly the answers would not be subject to a motion to strike based on a claim that the questions were improperly framed, having been asked on cross examination. It seems equally sure then that a negative answer would have nothing to do with rendering the form of the questions improper.
In Fritts v. State, 119 Tex.Crim. R.,
See also Booth v. State, 90 Tex.Crim. R.,
In his motion for rehearing and written argument in support thereof appellant mentions Alexander v. State,
"The questions propounded by counsel for the state in the instant case were improper, and, even had they elicited affirmative responses, the evidence would have been inadmissible." Therein, we think, lies the vital distinction in the questions which are the subject of objections in the present case. If affirmative responses had been elicited the evidence would clearly have been admissible.
Appellant relies strongly upon Ballard v. State,
It occurs to us that to sustain appellant's contention here would destroy the very end sought to be attained by legitimate cross examination. If the defendant or any other witness is thought to be in possession of information which would be legitimate evidence if an admission as to such facts could be secured from him on cross examination, certainly it would not be improper to so frame the question as tended to secure the admission by an affirmative answer. Yet to hold as appellant contends would deter counsel from asking such a question, for fear of being penalized if a negative answer was given by the witness.
In our original opinion we said that after Strelau and the deceased were thrown out one of them came back up to the stairway and said, "Sonnie, give us back something." Our attention has been called to a typographical error. The name should have been "Lonnie," and the original opinion has been corrected to so read.
Believing the proper disposition was made of the case originally appellant's motion for rehearing is overruled.
Ballard v. State , 97 Tex. Crim. 455 ( 1924 )
Ard v. State , 101 Tex. Crim. 545 ( 1925 )
Allen v. State , 136 Tex. Crim. 315 ( 1939 )
Lamm v. State , 94 Tex. Crim. 560 ( 1923 )
McCoy v. State , 129 Tex. Crim. 259 ( 1935 )
Henley v. State , 81 Tex. Crim. 221 ( 1917 )
Peysen v. State , 136 Tex. Crim. 127 ( 1939 )
West v. State , 137 Tex. Crim. 554 ( 1939 )
Graham v. State , 122 Tex. Crim. 416 ( 1932 )
Booth v. State , 90 Tex. Crim. 240 ( 1921 )
Sumrow v. State , 116 Tex. Crim. 593 ( 1930 )
McIntosh v. State , 85 Tex. Crim. 417 ( 1919 )