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ted to get before the jury the advice of these pear before the grand jury of Hill county. All people with reference to appellant's guilt. As of this was permitted to disprove the theory of we understand the majority opinion, the posi- the defense that the prosecution had been contion is taken that this testimony or conversa cocted out of a spirit of malice, and that Pearl tion did not indicate the opinion of the grand- Thomas voluntarily appeared before lawyers in father and grandmother that appellant was Cleburne to institute prosecution; and that guilty. We do not believe that this view of the jury was instructed that the testimony adwhat the bill of exception shows is correct. mitted could not be considered by the jury as Mrs. Kirby stated that she told them all that any evidence of the guilt of the defendant.” We she had heard and seen in Ft. Worth. Now, can readily see that after appellant had proved what she had heard and seen, at least as detail- | by the witness Pearl Thomas, on cross-examinaed by her, and under the law declared by the ma- tion, the circumstances of the alleged rape, it jority, pointed to the guilt of three persons and would not injure appellant to prove the same three persons only, namely, Dr. Link, Mrs. circumstances by the witness Cleveland. But Fondren, and the appellant, the first two as it does not occur to us that this authorized the principals and appellant as accomplice. The state to prove by the witness Cleveland that he facts, from the standpoint of Mrs. Kirby, point- reported the matter to the county attorney of ed to the guilt of no other person. One who, Hill county, and that he did so in order to have on the facts as detailed by her, advised placing attachments issued for Pearl Thomas and her the whole matter before the prosecuting officers, mother to appear before the grand jury of Hill must have understood that, if her story was county, so as to inaugurate and expedite the believed by the officers, these three persons, or prosecution. This was an indirect way of getat least some of them and no other persons, ting before the jury the opinion of the county would be prosecuted. Therefore it seems clear attorney of Johnson county as to the effect of that when the grandfather and grandmother, the disclosures made by the witness Pearl Thomafter being told by Mrs. Kirby what she had as to him. The fact that the court instructed seen and heard at Ft. Worth, advised her to the jury not to consider said testimony as any place the whole matter before the prosecuting evidence of the guilt of defendant does not ocofficers, they must have believed her story, and, cur to us to have cured the vice of the admisbelieving it, must have believed Dr. Link, Mrs. sion of the testimony regarding the report of Fondren, and appellant guilty. No jury could the county attorney of Johnson county to the have understood otherwise. Evidently the jury county attorney of Hill county. If this testiwould have reason to believe that, in advising mony did not tend in some way to show the that the facts be placed before the officers, the guilt of appellant, it is difficult to see how the old people must have known that some one jury could regard it for any purpose. And might be prosecuted, and since the facts, as de- they would be liable to regard the fact tbat tailed_by Mrs. Fondren, implicated Dr. Link, because, after Pearl Thomas disclosed to the Mrs. Fondren, and appellant, and no one else, county attorney of Johnson county the facts that they thereforo in effect advised the prose- regarding the rape, he thereupon immediately cution of these three persons, and, having ad- instituted the prosecution through the county vised their prosecution, must have been of the attorney of Hill county, that he believed the opinion they were guilty.
testimony of prosecutrix and it made out a case “The rule is general that the state will not against appellant; that is, that such was bis be allowed in any criminal prosecution to place opinion, and it may have served to strengthen before the jury opinions directly or indirectly the evidence of the prosecutrix before the jury.' expressed with reference to the defendant's “The case of Mercer v. State, 66 S. W. 555, guilt. In many cases this court has announced also deinonstrates that this testimony was in. and applied this well-settled doctrine, and in admissible. In that case the state desired to many of them the opinion was less directly ex- show that one of its witnesses had acted in the pressed than it is here.
capacity of a detective with reference to the "In the Bennett Case, 39 Tex. Cr. R. 649, prosecution involved. It appeared that this 48 S. W. 61, it was held to be error to prove witness had gone into the joint business' at by an officer that he had used every effort to Burleson for the purpose of detecting appellant ferret out the perpetrator of the offense; and and another party. Over the objection of the thus, by inference, get before the jury the of- defendant, the witness was permitted to state, ficer's opinion that the defendant was guilty. and did state, that he engaged in the 'joint busiThis presented a less direct expression of opin- ness' and was engaged as a detective by one ion than is presented in the case at bar. Jim Ellis for the purpose of detecting parties
"The case of Denton v. State, 46 Tex. Cr. R. suspected of crime in Burleson, including the 193, 79 S. W. 560, is in point. In that case defendant and one John McGee. The trial judge the state in rebuttal placed Mason Cleveland, qualified the bill of exception by stating that county attorney of Johnson county, on the the testimony was admitted for the purpose of stand and proved by him that the prosecuting showing the capacity in which the witness actwitness was brought to his office on two dif- ed. This court held that, while it was perferent days, and that she first refused to dis- missible to show that he acted in the capacity close the facts of the case, and later that she of a detective, still it was not permissible, in did disclose the facts and divulge the name of this connection, to show that he had been emthe defendant, and be made a report thereof to ployed by Ellis to detect appellant, because the county attorney of Hill county. We quote this fact indicated the opinion of Ellis that apas follows: "The court explains the introduc- pellant was guilty. tion of this testimony, as follows: "That de "From Campbell v. State, 30 Tex. App. 649, fendant on the cross-examination of the witness 18 S. W. 410, we quote: We are also of the Pearl Thomas proved by her that she told of opinion that the court erred in permitting the this act of intercourse with Denton to the coun- declarations, statements, and advice given by ty attorney of Johnson county, in Cleburne; three parties, to wit, his attorney, the district that she first denied it; that on the second judge, and the district attorney to the state's day they put her under oath, and she then ad- witness J. R. Hartman in regard to his testimitted it; that she did not give defendant away mony; these statements and advice being wholuntil she was caught. In rebuttal the court ly irrelevant and not pertinent to the issues in permitted the state to place the county attor- the case. Such evidence was purely hearsay, ney of Johnson county on the stand and prove and calculated to prejudice the defendant in the the facts stated in the bill. In this connection minds of the jury by impressing upon them the other testimony in the record showed that, after opinion of the district judge and the district atthe county attorney of Hill county received a torney as to the importance of his testimony, phone message from Cleburne, attachments were and the necessity that it should be concealed or issued for Pearl Thomas and her mother to ap-1 withheld until the final trial of the defendant
McCracken v. State, 6 Tex. Anp. 507; Chumley, a sharp issue with reference to his guilt. The v. State, 20 Tex. App. 547; Máines v. State, 23 testimony introduced by him tended to show Tex. App. 568 [5 S. W. 123]; Nalley v. State, that he had absolutely no connection with the 28 Tex, App. 387 [13 S. W. 670].'
abortion. The admission of this conversation “And again it has been held in many cases between Mrs. Kirby and the grandfather' and that the state cannot, in meeting some legit- grandmother must have worked actual injury to imate issue, incidentally place before the jury the rights of appellant. This being true and an opinion with reference to appellant's guilt. the testimony being hearsay, the judgment See Holloway v. State, 54 Tex. Cr. R. 472, should be reversed. 113 S. W. 928; Barbee v. State, 50 Tex, Cr. "Second. We further submit that the trial R. 427, 97 S. W. 1058; Denton v. State, su- court erred in allowing the state to prove that pra; Mercer v. State, supra; Cogdell v. State, mrs. Kirby told the county attorney the same 43 Tex. Cr. R. 180, 63 S. W. 645; Morton v. story she told the jury and will now discuss State, 43 Tex. Cr. R. 537, 67_S. W. 115; Jen- that point. kins v. State, 45 Tex. Cr. R. 178, 75 's. w. "After detailing her conversation between her 312; Watson v. State, 50 Tex. Cr. R. 172, 95 grandfather and grandmother and her return S. W. 115. All hold that such testimony in- to Ft. Worth, and the fact that she had made dicating an opinion with reference to the de- an appointment with the assistant county atfendant's guilt is not admissible.
torney, Mrs. Kirby was then allowed to state, "It is further well established that, when over objection, that the assistant county at. such testimony has been gotten before the jury, torney came her residence and had a conthe court cannot cure the error in admitting versation with her with reference to the aborthe testimony by undertaking to limit it in his tion. We will quote so much of the bill as is charge. See Denton v. State, supra; Mercer applicable to what we shall now discuss : 'Mr. v. State, supra; Parker v. State, 46 Tex. Cr. Wilson: Q. Did you 'phone me and talk to R. 469, 80 S. W. 1008, 108 Am. Śt. Rep. 1021, me? A. Yes, sir; I done like they told me. 3 Ann. Cas. 893; Cogdell v. State, supra. told them, “This is Pansy Kirby, J. R.
"Nor does the fact that the prosecuting at- Browning's granddaughter," and I told you i torney stated that this testimony was not be- wanted you to come to my house, 1211 Gould ing introduced for the purpose of connecting avenue. Q. Did you tell me what it was about? the defendant with the offense cure the error. A. I told you I had some important news to We do not understand that a party can be tell you; I didn't tell you what it was. allowed to get before the jury illegal and prej. When I got there it was on Sunday? A. Yes, udicial testimony by merely stating that he sir, Q. Did you tell me what you have testidoes not intend to use it to establish his side fied here? A. Yes, sir.' of the case. The testimony indicated the ad- "In this connection, another bill of excepvice of the aged people to have appellant pros- tion shows that while the witness James O. ecuted. By fair, if not necessary, inference, Wilson, assistant county attorney of Tarrant it indicated their opinion that he was guilty. county, was on the stand, he was allowed to tesIt was hearsay. No exception to the hearsay tify with reference to this conversation with rule is pointed out justifying its admission, Mrs. Kirby as follows: Mrs. some lady, and the state was not entitled to get it be- I didn't know who it was at the time, phoned fore the jury by merely stating that it did not me one Sunday, the Sunday morning this girl intend to use it to establish appellant's guilt. made this statement, I should judge about 8
“The testimony was further injurious and o'clock, sometime along there; I cannot be cerprejudicial, in that it tended to bolster and sus- tain. Anyhow, I told her I would come. I tain the story of the witness Pansy Kirby be didn't really catch the name; I did catch the fore the jury in an improper way. She testi- number, told me it was important. So having fied that she told her grandfather and grand the number, I went over there and finally mother what she had heard and seen in Ft. found her; and then she told me who they were Worth with reference to this abortion, and they –I did catch, was the granddaughter of J. R. then advised her to go back home immediately Browning over there, people I had known. So and place all the facts before the assistant | Mrs. Kirby told me what she had heard becounty attorney for his action. At that time tween Mrs. Fondren and the doctor just about they had not talked to any other member of the as related here to the jury, and also the confamily. They had not heard Mrs. Fondren's versation she related occurring between herself version of the affair. They had not heard ap- and Mrs. Fondren on that Friday.' This testipellant's version. They knew nothing about mony was admitted over appellant's objection it, except what was told them by Mrs. Kirby, that the same was hearsay and involved a transand on this, without further consultation with action and conversation had outside the presany member of the family, they were advising ence of defendant and which could not bind him. that the affair be at once placed before the “It should be recalled, in this connection, prosecuting officers. Evidently, the jury must that po basis whatever had been laid for the have concluded that, knowing the several mem- (introduction of this testimony undertaking to bers of the family, they had great confidence sustain Mrs. Kirby by proving that she had in the truth of the story detailed by Mrs. Kir- told the same story out of court that she was by, for on her story alone they were willing telling in court. The defendant had not, and to drag the whole family into court in connec- did not at any time during the trial, introduce tion with the commission of a disgraceful of- any of her statements made out of court contrafense.
dictory of her testimony on the stand.
It is "As we have said before, this conversation true that the defendant introduced testimony between Mrs. Kirby and her grandfather and tending to show that for a long time she and grandmother and their advice to her is con- her husband had disliked him, and had for ceded to be hearsay. The learned counsel rep- many years entertained ill will toward him, resenting the state point out no exception to and bad introduced the statements of her husthe hearsay rule justifying the admission of this band tending to show a desire for revenge. testimony. They merely say that it was prop- These matters are all fully set out in the maer, in rebuttal of the contention of appellant, jority opinion. As said in the majority opinto introduce this hearsay. In addition to be- ion, appellant contended that the testimony ing hearsay, the testimony was, as we have of Daisy Moore was induced and inspired by shown, highly injurious and prejudicial. Kirby and wife from their corrupt motive,
"In this connection it should be recalled that hostility to and hatred of him, and their, or the appellant has received the highest penalty Mr. Kirby's threats against him of vengeance. of the law applicable to the offense with which However, this ill will and desire for revenge he was charged. The facts set out in the ma- had existed for many years and existed at the jority opinion show that there was at least time these statements were made as well as
at the time of the trial. It is true the author- that appellant contended that her testimony had ities cited in the majority opinion establish the been influenced improperly by the Kirbys. This rule that, where it is contended that a witness being true, and it appearing at the time that is testifying to a certain state of facts, and she made the statement to the county attorney that his testimony has been influenced or induc- she had already had a conference with Mrs. ed by some corrupt motive, his statements made Kirby, we do not believe his testimony with refbefore the existence and operation of such a erence to what she told him was admissible. motive on his mind barmony with his tes. We will discuss this later. However, if this be timony on the trial are admissible to sustain a doubtful question on account of the state of him. These cases, however, hold, and the rule record, it is undoubtedly true that, under this is general, that a statement made by the wit- record, the testimony of Wilson and Mrs. Kirby ness after the motive to falsify exists is not ad to the effect that Mrs. Kirby bad told him the missible to sustain his testimony on the trial. same story she was telling the jury was not Therefore the authorities cited in the majority admissible. In fact, we believe that the very opinion, as well as many others, show that Mrs. cases cited in the majority opinion establish Kirby's testimony and the testimony of the conclusively that this testimony was not admiscounty attorney to the effect that she told him sible. the same story of this affair that she was tell "In the case of Jones v. State, 38 Tex, Cr. R. ing the jury was clearly inadmissible. Let it be 103, 40 S. W. 810, 70 Am. St. Rep. 719, the conceded that, as shown by the majority opin- appellant was prosecuted for murder. He conion, appellant contended that Mrs. Kirby's ac-tended that some years before the deceased bad tivity and testimony was caused by her ill will raped his wife. We quote: The statement of toward him and desire for revenge. If this is acts presents but one issue, and that is whether the motive that induced her to testify as she appellant was guilty of murder in killing W. G. did, then this motive bad existed for many Veal, or whether he was guilty of manslaughter. years and existed at the time she talked with | If the jury believed the testimony of Mrs. Jones Wilson; and, under well-settled principles, her and appellant, the theory of appellant that it is statements made out of court at a time when nothing greater than manslaugbter is clearly the same motive to falsify existed, as at the presented. If the jury did not believe the testitime of the trial, were not admissible to sus- mony of appellant and Mrs. Jones, then man. tain her. See the cases cited in the majority slaughter, so far as the jury is concerned, is opinion all announcing this rule, and also the not in the case. The state's theory is that the following: Sanders v. State, 31 Tex. Cr. R. killing was not prompted by the passion aroused 525, 21 S. W. 258; Conway v. State, 33 Tex. by this misconduct of Veal towards Mrs. Jones Cr. R. 330, 26 S. W. 401; Anderson v. State, (wife of appellant), and that her testimony was 50 Tex. Cr. R. 136, 95 S. W. 1037.
manufactured to aid her husband in his de "Mr. Branch, in section 875 of his work, fense.' In other words, the state contended in states the rule' as follows: "Where the testi- that case that the story of Mrs. Jones on the mony of state's witness is impeached on the witness stand that some years before the deground of corrupt influence or falsification, it ceased, Veal, had raped her, was a fabrication is error to sustain the witness by proof of invented to save the life or liberty of her husstatements in harmony with his testimony band. In this state of the record, and in view made after the motive existed which would of this contention of the state, this court held likely prompt him to testify falsely.'
it proper for the defendant to introduce testi"This well-settled rule thus clearly stated mony that, before the defendant had killed dedemonstrates that Mrs. Kirby's testimony and ceased, Mrs. . Jones had told the same story the testimony of the witness Wilson that she with reference to being raped by the deceased had told the same story to him she had told the that she had told at the trial. This declarajury was not admissible. Moreover, the quota- tion was admitted for the reason that at the tion made in the majority opinion from the case time the same was made she could not have of Jones v. State fully establishes that her tes- been influenced by the motive to falsify charged timony was not admissible, for in that case it is against her at the time of the trial. clearly recognized both in the original and in "Again, in the case of Mitchell v. State, referthe opinion on rehearing that, where the alleged red to in the majority opinion, the same ruling statement is made at a time when the same was made. In that case, it having been conmotive to falsify existed that exists at the time tended that a given witness had testitied falsely of the trial, the statement is not admissible. in order to secure the dismissal of a case pendThis rule applies squarely to the testimony of ing against him, it was held proper to introduce Mrs. Kirby. She was influenced at the time his statements in harmony with his testimony she talked to the county attorney by exactly the made before his case was dismissed. same motives to make a false statement that "The same is true of Akin v. State, 56 Tes. were charged against her at the time of the trial. Cr. R. 329, 119 S. W. 863, referred to by the
"It may be that, under this record, and under majority. In that case, it having been contendthe well-settled rule discussed in the Jones Case ed by the state that the testimony of defendand other decisions referred to in the majority ant's wife with reference to deceased insulting opinion on motion for rehearing, it was per- her was a fabrication to save her husband, it missible for the state to prove that the prose was held admissible for the defendant to show cuting witness Daisy Moore had told the as that before the homicide she had made statesistant county attorney, in a conference with ments with reference to the matter in harmony him, the same story she was telling the jury. with her testimony at this trial. There can be no doubt that the rule laid down "See, also, Wigmore on Evidence, $ 1128, in Jones v. State, 38 Tex. Cr. R. 103, 40 S. where the learned writer correctly states the W. 807, 41 S. W. 638, 70 Am. St. Rep. 719, general rule, stressing the idea that the state and in Mitchell v. State, 36 Tex. Cr. R. 302, ment must be made at a time prior to the exist33 S. W. 367, 36 S. W. 456, is a sound and ence of the fact indicating bias, interest, or corwell-established rule. The only question that ruption. can arise is with reference to its application to “Now in this case, at the time Mrs. Kirby this record. We submit (and will hereafter dis- had her conference with the county attorney, cuss this phase of the bills of exception) that the crime charged against defendant had been the testimony that Daisy Moore told the county committed. Mrs. Kirby then knew all about the attorney the same story she told the jury was circumstances surrounding its commission that not admissible for the reason that, two days she knew at the time of the trial. Her conferbefore her conference with him, Mrs. Kirby had ence with the county attorney in which, acgone to see her and had at least had an oppor-cording to her testimony and to his testimony, tunity to talk with her with reference to the she told him the same story she had told the affair. In this connection it should be recalled ljury, was a week after the alleged crime was
committed. It was two days after Mrs. Kirby | error was committed in admitting this testihad ber last conversation with appellant, ac- mony. cording to her testimony. At that time, and "Third. We next refer to the testimony of the years before, according to appellant's conten- witness James Wilson with reference to his tion, Mrs. Kirby and her husband had been first conversation with the prosecuting witness very hostile toward him. He had opposed their Daisy Moore. We do not deem it necessary, marriage, and when, after having separated, however, to discuss this part of the bill of exthey attempted to go back together, he bitterly ception at length. The majority has determined opposed that step. Her husband had expressed, that since the defendant contended that the tesaccording to appellant's witnesses, a desire for timony of Daisy Moore was false and was in revenge on appellant. It was the theory of spired and influenced by Mrs. Kirby and her appellant that, actuated by this long-continued husband, and that they in turn were moved and hostility, and 'feeling a desire for revenge, the actuated by their long-continued hostility to apKirbys had instigated this prosecution against pellant, it was permissible for the state to show him. Now, this being true, and this charge bav- that, before the operation of the influence of the ing been laid at the door of the Kirbys, was it Kirbys, Daisy Moore had told a story to the permissible for Mrs. Kirby to introduce, in sup-county attorney similar to that detailed to the port of her testimony, her declarations made out jury: Authorities are cited in the majority of court in harmony with her testimony on the opinion holding that, where the testimony of a trial, at a time when the same motive to faisify witness is assailed and it is asserted that the existed? Clearly not. At the time she talked to same is false and the result of some corrupt the county attorney she was influenced by the motive or influence, statements of the witness same motives and influences to testify falsely made out of court at a time before the existence against appellant that could have influenced This was the holding in Jones v. State, which is
of such influence are admissible to sustain him. her at the time of the trial. committed any crime, it had been committed quoted from at length in the majority opinion. some time before her conference with the county With that holding we have no disagreement. attorney; and, if her testimony against him Applying the rules laid down in that case and was influenced or induced by her hostility and the other cases referred to, it is clear to us that desire for revenge, then her story to the county fore discussed, was not admissible.
the testimony of Mrs. Kirby, which we have beattorney was influenced and induced by the same motives or causes. Therefore, under the
“Now, with reference to the witness Daisy rule laid down in the above-cited cases, this tes- Moore, the record does not show that the statetimony was not admissible. The rule is settled ment made by her to the county attorney was that it is never proper, in support of a witness made before the existence of the influence of the who is charged with having testified under some recited in one of these bills of exception, that
Kirbys over her. The record shows, and it is corrupt motive or influence, to introduce the statements of the witness made out of court at
on Friday before the county attorney had this a time when the same alleged corrupt motive or conversation with Daisy Moore Mrs. Kirby had influence existed. This is recognized in all of gone over to see her at the home of a Mrs. the cases cited in the majority opinion, and is Mrs. Kirby on this occasion is not shown.
What occurred between her and expressly declared in the Sanders Case and in Her statement to the county attorney was made the Conway Case, above referred to. See decision by Judge Hurt in last-mentioned case.
two days after this conference with Mrs. Kir“The question now arises:
by, and therefore it cannot be said that the Was the admis
statement was made before the Kirbys had sion of this testimony injurious to appellant: had an opportunity to influence her with refIn determining this it should be recalled that erence to her testimony. On the contrary, the the state's case rested, as stated in the majority record shows, as above stated, that her conopinion, on the testimony of Daisy Moore and ference with the county attorney was two days Pansy Kirby. Mrs. Kirby testified to the agree- after Mrs. Kirby had had a conference with ment between Mrs. Fondren and the doctor to her. We therefore submit that under these have the abortion produced. She further testi- circumstances the testimony of the assistant fied to two conversations with appellant after county attorney, in effect, that she told him the abortion had been produced. In both of the story that she had told the jury, was not these conversations, as detailed by her, he indi- admissible; for it was not shown to be a statecated a guilty knowledge of and a guilty ment made at a time before she could have connection with the affair. In the second con- been influenced by the Kirbys. The appellant versation and the one with reference to which contended that her testimony was caused and Mr. Wilson was allowed to testify that Mrs. induced by the influence of the Kirbys. This Kirby told bim the same thing she told the being true, her statements in harmony with jury, appellant, according to Mrs. Kirby, prac- her testimony on the trial, made at a time tically confessed to her that he had been hav- before she could have been influenced by, the charged him with this fact, and he not only did Kirbys with reference to her story, would have
But the statement made to not deny it, but told her that it was none of her the county attorney does not come within this "darned business." The whole conversation is class, and therefore the rule laid down in Jones set out in the majority opinion, and clearly v. State does not apply. See Sanders v. State, was one of the most incriminating circumstances 31 Tex. Cr. R. 529, 21 S. W. 258; Conway v. introduced against appellant. He denied both State, 33 Tex. Cr. R. 327, 26_S. W. 401; of these conversations. They are attested by no Anderson v. State, 50 Tex. Cr. R. 136, 95 s. witness other than Mrs. Kirby. He further ex- W. 1037; Millsaps v. State, 42 S. W. 991. plains himself, and through his other witnesses, "However, even if there should be any doubt in a satisfactory way, his presence in Ft. Worth with reference to the admissibility of the testias having nothing whatever to do with the abor- mony of the county attorney with reference to tion, and the testimony of Mrs. Kirby was the his conversation with the witness Dai Moore, only testimony tending to show that his pres- it is clear that the testimony of Mrs. Kirby ence in Ft. Worth had any connection with the with reference to the conversation between hercrime. Therefore it is clear that the error of self and her grandfather and grandmother, and the court in permitting the state to prove that between herself and the county attorney, and Mrs. Kirby had told the county attorney the the testimony of that official with reference to same story she told the jury was highly preju- his conversation with her, was not admissible. dicial.
Further discussion of this point, we be- And the error of the court with reference to lieve, is unnecessary. It is clear to us that, this testimony being clearly reversible, we do under this record, and the authorities cited in not feel it necessary to discuss the testimony
versation with Daisy Moore at length. Thefter Daisy had told her at the time she told her other bills clearly disclose reversible error. of her state of pregnancy that she had had in
"The instruction of the court limiting all of tercourse with several and did not know who this testimony to use for a particular purpose was responsible for her condition. It is true was wholly unavailing. See Denton and Mer- also that in this connection various members cer Cases, hereinbefore discussed. The testi- of the family testified to her staying out late mony of Mrs. Kirby with reference to her con- at night. No evidence was introduced, howversation with her grandfather and grand- ever, to the effect that her general reputation mother and their advice to take up the matter for virtue, chastity, or morality was bad, and with the officers was not admissible for any no question to that effect was asked. In fact, purpose, but was irrelevant to any issue in the appellant himself testified, on cross-examination, case; it shed no light whatever on the issue that her reputation was good in these respects with reference to the guilt of appellant; it and that he had always considered her a pure merely informed the jury that the grandfather and moral girl. Appellant objected to the adand grandmother had advised his prosecution. mission of this testimony on the ground that This fact was not only immaterial, but could he had made no effort whatever to assail her under no view of the record have become ma- reputation in the respects inquired about, and terial. We do not understand how the fact that the same bad been in no wise put in isthat some person had advised his prosecution sue. could under any possible state of the record "In this connection it should be recalled that have become admissible against the defendant. the state contended that appellant, and appel. Again, the testimony of Mrs. Kirby and that lant alone, was responsible for the ruin of of the witness Wilson with reference to a con- Daisy Moore. The state introduced testimony versation with him was wholly inadmissible to this effect as tending to show motive on the for any purpose as we believe we have shown, part of appellant for the abortion. Appellant and, being admissible for no purpose, it could denied not only having anything to do with not be properly limited to any particular pur- the abortion, but also denied the motive, namepose. The fact that Mrs. Kirby told consistently, denied having had intercourse_at any time stories about the affair did not in any wise with the prosecuting witness. To meet this tend to show that she instituted the prosecution issue, and to disprove the contention of the in good faith, or that in her activity against state that he. was responsible for the preg. appellant she was not actuated by ill will or nancy of the witness Daisy Moore, appellant revenge. In fact, if she was actuated by these introduced the testimony of his wife that Daisy motives, it is more than likely that her state- Moore had stated to her that she had bad in. ments, being preconceived and the result of tercourse with several persons. This testimony deliberation, would be consistent. It was per- also served to contradict and traverse the tesfectly proper for the state to introduce testi- timony of Daisy Moore that she had had in. mony tending to show the fact, if it was a tercourse with no person other than appellant. fact, that Mrs. Kirby_and her husband bad not This was purely defensive testimony, and the talked to the witness Daisy Moore with reference mere fact that it incidentally tended to show to her testimony. The state might have also that the witness Daisy Moore was unchaste shown on this issue that the Kirbys were not un- and not virtuous did not authorize the introfriendly toward appellant. They might have fur- duction of testimony of her general reputather proven by the county attorney that he in- tion in rebuttal. We quote the following from stituted the prosecution independently of any Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. statement made to him by the Kirbys. But on 1043: We understand the doctrine now to be this issue it was not permissible for the state to established, before evidence of general reputaprove that Mrs. Kirby had told consistent tion as to some characteristic of a deceased perstories with reference to the affair. This did son can be offered by the state, this matter not tend in any wise to exculpate her from must be first put in issue by the defendant the charge laid at her door by appellant. by offering testimony of that reputation. It
“We therefore submit that the trial court al- is not sufficient merely that because of the lowed the state entirely too much scope in meet- defendant's testimony concerning the homicide ing this issue. Even if appellant did charge some characteristic of deceased may be brought the Kirbys with instigating this prosecution out or made to appear. In this case appellant and with influencing the prosecuting witness offered positive testimony to the effect that deDaisy Moore, they were not entitled to excul- ceased had debauched the wife of appellant, pate themselves from the charge by the use of which would indicate that he was not a person hearsay testimony any more than appellant of good character for virtue. But this did not was entitled, with hearsay, to exculpate himself justify the state, in order to meet this, to refrom the charge in the indictment. The court sort to evidence of the general reputation of should have confined the Kirbys, in meeting the deceased as to virtue and chastity. The state charge made against them by appellant, to the could not thus meet this proof by positive eri: use of proper and legitimate testimony. They dence with proof of general reputation, and were not entitled to undertake to meet this would be only authorized to introduce evidence charge with hearsay.
of general reputation of the deceased in the “Fourth. Aside from the matters before dis- respect offered, when appellant himself bad cussed, appellant has brought forward and first assailed the state's case by proof of deceasagain presented in his motion for rehearing all cd's general reputation. Graves v. State. 14 the questions originally presented in his mo- Tex. App. 113; McCandless v. State, 42 Tex. tion for new trial in the lower court. There Cr. R. 58, 57 S. W. 672; Kennedy v. State, is one of these matters that we believe dis- 140 Ala. 1, 37 South. 90. closeg reversible error and will briefly discuss. “Other authorities might be cited, but it is
“The tenth, eleventh, twelfth, thirteenth, and deemed unnecessary. Appellant was entitled to fourteenth assignments of error assign error on traverse the testimony of the state that he and the action of the trial court in permitting the he alone had had intercourse with the witness state, over objection of defendant, to prove by Daisy Moore. He was also entitled to traverse various witnesses the general reputation of the testimony of the state that he and he alone the prosecuting witness Daisy Moore in the was responsible for her pregnancy. The mere community where she lived with reference to be fact that his defensive testimony on these issues ing a moral, chaste, and pure girl. It is held tended to show that she was unchaste and not by the majority that this testimony was admis- virtuous did not authorize introduction of tes. sible upon the grourd that appellant in mak- timony on the part of the state that her gening out his defense had assailed the virtue and eral reputation for these characteristics was chastity of the prosecuting witness. It is true good. that appellant's wife testified that her daugh "We think this case comes squarely within