Howell v. State

The judgment of conviction Was reversed in an opinion of date April 7, 1937. The State's motion for rehearing was granted, the judgment of reversal set aside and the judgment of conviction affirmed in an opinion of date May 26th, 1937. Appellant now files a motion for rehearing in which he urges that this court was in error in the disposition of the questions considered in the former opinions. We do not feel called upon to discuss these questions further. Appellant in his motion calls attention to this bill of exception number two which was not adverted to in either the opinion of reversal or affirmance. The fact that same was overlooked may be accounted for by the circumstance that said bill was omitted from the original transcript and was brought forward in a supplemental transcript and in that way it escaped attention. The bill in question relates to the impeachment of State's witness Guerin. The conviction depended almost entirely upon Guerin's testimony. He was by far the State's most important witness, without whose testimony the State could not have made even a meager case against appellant. While Guerin was an accomplice witness it is apparent that the jury was necessarily forced to rely upon the truthfulness of his testimony. Said bill relates at length the evidence which had been given by said witness showing its importance, and then recites that J. D. Earnest, the County Judge, of Kent County, testified that he had known Guerin about four years, knew his general reputation in the community where he resided for truth and veracity, and that such reputation was bad. He was then asked if Guerin's reputation in that respect was such "as to entitle him to belief under oath." The District Attorney objected on the ground that he "believed it was going a little too far, and that he did not think any human being could answer that question." The objection was sustained. The bill recites that if permitted to answer Earnest would have testified that the reputation of Guerin for truth and veracity was such as not to entitle him to belief under oath.

The last time this court was called upon to discuss the question at length was in Latham v. State, 117 Tex. Crim. 226,33 S.W.2d 441, in which the court, speaking through Judge Martin, then one of our Commissioners, said:

"It is held in an unbroken line of authorities, extending back to our earlier judicial history, that a witness who has properly qualified and answered that the general reputation of a witness for truth is bad may further be asked whether that 'general reputation is such as to entitle the witness to credit on oath.' Marshall v. State, 5 Texas App., 273, 294, quoting Boon v. Weathered, 23 Tex. 657. See, also, on same subject, Holbert v. State, 9 Texas App., 221, 35 Am. Rep., 738; Bluitt v. State, 12 Texas App., 39, 41 Am. Rep., 666; Ware v. State, 36 Tex.Crim. Rep., 38 S.W. 198; Clemens v. State,81 Tex. Crim. 113, 193 S.W. 1066; Robertson v. State,104 Tex. Crim. 89, 282 S.W. 587; Moody v. State,90 Tex. Crim. 529, 236 S.W. 740."

Later in the same opinion appears the following:

"The reasoning of some of the cases which contain the principle here announced is that the mere presence of proof that a witness reputation is bad leaves the jury without an exact guide as to the extent to which his testimony should be discredited, whereas precise proof that it is such as not to entitle him to belief under oath furnishes the jury an exact rule of measurement for their guidance. Without pausing here to analyze its correctness, suffice it to say that such a rule has been too long a part of our law to now disturb and unsettle it by criticism."

In Branch's Ann. Tex. P. C., Sec. 184, page 116, is found a text in line with the first quotation from Latham's case, with citation of some of the same authorities and also additional ones. The same rule will be found in Sec. 266, page 136, 45th Tex. Jur., with citation of numerous authorities under Notes 15 and 16.

The State's reliance upon Guerin's testimony in the present case was so imperative that we are forced to the conclusion that the rejection of the evidence complained of was such error as demands reversal. We regret having overlooked said bill heretofore.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of conviction is now reversed and the cause remanded for the error appearing in bill number two.

Reversed and remanded.