Terry v. State

HAWKINS, Presiding Judge.

Conviction is for robbery, punishment assessed at five years in the penitentiary.

W. P. Bratcher operated a store in Tarrant County. About 9 o’clock on the night of August 31, 1940, several parties appeared at the store. Guns were exhibited and Mr. Bratcher and his wife were caused to lie down on the floor, and some one hundred sixty-five dollars were taken by the robbers. Mr. Evans, a customer of the store, came in during the holdup and was also robbed. Appellant was identified by Mr. and Mrs. Bratcher and by Mr. Evans as one of the robbers. Appellant did not testify, but through other witnesses raised the issue of an alibi, which was properly submitted to the jury. ,

Bill of exception No. 1 reflects an error for which the judgment must be reversed. Said bill shows the following occurrence. The defense was an alibi. Appellant placed upon the witness stand his mother, Mrs. L. M. Terry, who gave material testimony for appellant to the effect that at the time the robbery was committed he was at witness’ home. On cross-examination the witness was asked if she had ever been indicted for a felony in this State, to which she answered, “Well, you said I had but I didn’t know that I had.” "She was then asked if she had not seen the indictment and the "bond she had signed, and replied, “Yes, sir. I never was arrested; I never was tried and never plead guilty.” State’s counsel then asked the witness, “Well, you admit that you were indicted for a felony in the federal court about five years ago,” to which she answered, “Yes.” At this, point appellant’s attorney said, “Well, let me see, do you know what a felony is?” and the witness answered, “Well, when someone does something wrong, a crime.” Counsel for appellant then asked the witness if she knew what a felony was under the law, to which the witness replied that she did not. At this point counsel for appellant interposed objection and asked the court to instruct the jury not to consider any of the witness’ answers for any purpose, which the court declined to do, over the exception, as stated to the court that it had not been shown that the indictments inquired about were for felonies or any offense involving moral turpitude.

Of course, the State had the right to show, as affecting the witness’ credibility, that she had at a time not too remote been indicted for a felony or for a misdemeanor involving moral turpitude, and could show it by developing the fact upon cross-examination of the witness. However, when it appeared that the witness did not know the legal meaning of a felony it then devolved upon the State, in the face of the objection urged, to bring itself within the rule by showing in some proper manner that the indictments inquired about were for felonies. See 45 Texas Jurisprudence, page 101; Branch’s Annotated Texas Penal Code, sec. 167, and cases there cited. The trial court fell into error in not complying with appellant’s request to withdraw from the jury the answers of the witness in the absence of -a showing that the indictments inquired about were for felonies. It may be that the representatives of the State and perhaps the trial judge were in possession of information which satisfied them that the indictments inquired about really charged felonies, but this court is without advice on the subject and as the incident appears in the record error is presented.

Bill of exception No. 6 shows that appellant, in his motion for new trial, alleged that during the deliberations of the jury they received other evidence than that introduced on the trial and were otherwise guilty of misconduct in particulars specified. After hearing evidence upon the motion the court found against appellant on the ■ averments mentioned, and, we think, correctly so. We do not discuss the question at length as. it will not arise upon another trial. ■

Bill of exception No. 7 brings forward complaint of the language used by the assistant district attorney in his opening argument to the jury, which appellant claims was a reference to his failure to testify as a witness, in violation of the provisions of Article 710, C. C. P. (1925). The language complained of follows: “Defendant rested and still we did not hear from the defendant from the witnesses Mr. and Mrs. Hutcherson.” The expression is Unusual and without the qualification placed on the bill by the trial judge would be confusing, but the explanation appended to the bill draws a very clear picture of the situation and to what the argument had reference. Mrs. Bratcher had positively identified appellant as one of the robbers. On cross-examination she was asked if a day or two after the robbery at the store she had not told Mr. and Mrs. Hutcherson that the robbery happened so quickly that neither she nor Mr. Bratcher could identify any of the robbers. Mrs. Bratcher replied that she had not made any such statement and that she did not know anybody by the name of Hutcherson. After counsel for appellant asked the witness several other questions on the same subject he requested that Mr. and Mrs. Hutcherson, who were defense witnesses, be brought into the court room, which was done, and they were pointed out to Mrs. Bratcher in the presence of the jury by counsel for appellant and told by him who they were, and Mrs. Bratcher again testified that she did not know them. Appellant rested his case without calling either of the Hutchersons to the witness stand. In rebuttal, the State then did call Mrs. Hutcherson as a witness, and she testified that she had never talked to either Mr. Bratcher or Mrs. Bratcher about the case and had never heard either of them say anything about whether or not they were able to identify anybody connected with the case. The trial judge says counsel for the State was reviewing the foregoing situation as to the cross-examination of Mrs. Bratcher and of the incident of Mr. and Mrs. Hutcherson having been brought into the court room and further said in his argument that after they were brought in to be viewed by Mrs. Bratcher “that was the last we had seen of either of them and that defendant rested and still we did not hear from the defendant from the witnesses Mr. and Mrs. Hutcherson,” and followed this statement with the argument that if the Bratchers had said any such thing as was indicated by the questions the defense would have put the Hutchersons on the witness stand and let them tell the jury what the Bratchers did say. The trial court further says that he did not sustain appellant’s objection to the argument as the bill would indicate, but that he overruled the objection because he did not consider that said statement was either in the words used or in the reasonable meaning of such words or in the connection in which said statement was made, any reference to the failure of the defendant to take the witness stand and testify. It is apparent that counsel for the State was discussing a matter which occurred in the presence of the jury, about which appellant could know nothing, and about which he could have given no evidence, and there seems not even a remote probability that the jury could have gotten the idea that the remark objected to had any reference to appellant not having testified.

Bills of exception not particularly mentioned are not thought to manifest error.

For the error discussed, as presented in bill of exception No. 1, the judgment is reversed and the cause remanded.