Arbuckle v. State

Appellant was convicted in Criminal District Court No. 2 of Dallas County, of the offense of murder, and his punishment fixed at twenty-five years in the penitentiary. *Page 133

The case is before us without any statement of facts. Appellant urges that his bills of exception Nos. 4, 5 and 6 show reversible error in spite of such absence of facts. Bill No. 4 sets up that Jack Williams, husband of deceased, was the only eyewitness to the homicide, and on the day the case was first set for trial he came into the court room, as a witness for the state, in such condition of stupor or drunkenness that the learned trial judge held him in contempt, fined him one hundred dollars, and ordered him sent to jail. It is further set up that on the next day while the case was being tried, and on cross-examination of this witness, the defense sought to show that he was a dope fiend, and "drunk or full" when the court had him sent to jail the day before. The witness stated that he was neither drunk nor under the influence of dope but was sick and highly nervous. It is set up that thereupon the trial judge said to the witness: "I owe you an apology, if you were sick yesterday. Mr. Clerk, remit that fine." A great injustice has been done and I owe this man an apology." It is urged that this action of the court was in some way hurtful to appellant. We do not think so. If the court had hastily and in the presence of any member of the jury waiting to be passed on, fined said witness and ordered him to jail — it was but the manly and proper thing for him to make the apology likewise upon the discovery of his mistake. The court's correction could appear in no way to affect the jury's belief as to the veracity of said witness.

Bill No. 5 complains that over appellant's objection he was forced to answer, on his own cross-examination, the question as to whether on complaint filed against him he had been arrested and put in jail for a felony, to-wit: bootlegging. The contention is seemingly settled against appellant. In White v. State, 33 Tex.Crim. Rep., it is said: "But it seems this rule does not apply when the credibility of a witness only is sought to be attacked on cross-examination, for in that state of case he may be compelled to answer as to his previous convictions of infamous crimes." Many authorities are cited. See also Bratton v. State, 34 Tex.Crim. Rep.; Smiley v. State, 80 Tex.Crim. Rep.. It was proper in the charge to limit the effect of this testimony.

We find nothing in bill of exception No. 6 calling for any action on our part in the absence of a statement of facts. We can not determine whether the testimony was pertinent to any issue or not. *Page 134

The numerous special charges which were asked and refused present issues whose applicability cannot be determined in the absence of the facts. The charge as given by the court seems to fully and fairly present every issue raised.

No error appearing in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.