Holland v. State

When the original opinion was announced I did not then enter my dissent. When the court overruled the motion for rehearing I noted my disagreement. I can not agree with some statements and conclusions found in the opinion of the majority, so I shall follow the record in such quotations as I think necessary.

Bill of exceptions No. 1, as contained in the record, is as follows: "Be it remembered that upon the trial of the above entitled and numbered cause, while Henry Kendall, a witness for the State, was in the witness stand in behalf of the State, the State introduced the following testimony, towit: Q. I will ask you if you don't know it to be a fact that his mug (meaning defendant's picture) appears in the detectives' office (meaning rogue's gallery) up here, where they mug desperate characters, and that his mug is in other places that you know of? I want you to tell me whether or not you have heard that? A. I heard Mr. DeWitt say in there a while ago that he was mugged." This is the testimony to which many objections were urged. These objections were all overruled and the testimony went before the jury. In the original opinion the majority of the court held that inasmuch as appellant had filed his plea for suspended sentence that "it is incumbent upon an accused himself when he pleads for a suspended sentence to prove that he had never before been convicted of a felony in this or any other State. Under the statute, no presumption is indulged in his favor that he had not so committed a felony. He must prove it. If there is no proof of this fact, then the court should not submit the issue of suspended sentence to the jury for a finding at all, and that was the case in this instance.

"Whenever an accused pleads for a suspended sentence by proper sworn plea in time, the statute is clear when it says, then the court shall permit testimony as to the general reputation of the accused to enable the jury to determine whether or not to recommend a suspension *Page 535 of the sentence. We think this is clear and means what it says. And taking the whole statute and the object and purpose of it, we have held, and still hold, that not only can the State introduce testimony as to the general bad reputation of an accused, but can also prove specific instances of crimes, even minor misdemeanors and the general conduct, habits, etc., of an accused, so that the jury from all the testimony, even if he has never before been convicted of a felony, can determine whether or not in their discretion they will recommend a suspension of his sentence. The court should not permit purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying."

This quotation lays down two propositions: first, that it is incumbent upon the defendant, when he files his plea for suspended sentence, to prove it. If he does not prove it, it is not an issue in the case, and the court should not submit the matter to the jury. Other decisions have so held. The second proposition is, that purely hearsay testimony shall not be admitted on this issue, and yet this judgment is affirmed when the defendant introduces no testimony on his plea of suspended sentence. If the defendant does not file his plea for a suspension of the sentence it can not be an issue in the case, and no testimony should be admitted bearing upon his reputation. Defendant alone can put his reputation at issue under the suspended sentence act. The State can not do it. If he files his plea and offers no testimony, it is not an issue before the jury, because he does not tender any evidence on that question. Special matters to become issues in a case when authorized must be supported as to burden of proof by the party tendering such issues. Inasmuch as appellant did not offer any testimony in regard to this plea, the court was not authorized to submit the issue to the jury. This court, as well as the trial court, recognized that as the law, and the trial court refused to so charge the jury on the matter, and at their request expressly told them they could not consider it, and yet this hearsay testimony was permitted to go before the jury and remain before them. That it is purely hearsay is not the subject of debate. The witness Kendall, answering the question as to whether he had ever heard that appellant's picture was in the rogue's gallery, stated that he had heard Mr. DeWitt say so a while ago. It was not even attempted to be shown that his picture was in the rogue's gallery, but this witness was permitted to state that he had heard Mr. DeWitt say so. This is hearsay evidence of the veriest type. It could not be introduced either upon the plea of suspended sentence, if testimony had been offered in support of that plea, much less could it be introduced in evidence to affect the defendant's standing and reputation. I feel justified in making the statement that no opinion has been written that would hold this character of testimony admissible otherwise than as the merest hearsay. In the opinion on rehearing the majority opinion does not fully copy the matter as set forth in bill of exceptions but refers to the original opinion in which it was held that the court should not permit *Page 536 purely hearsay testimony as contradistinguished from general reputation or specific acts within the knowledge of the witness testifying, and further, even if the court on the issue of suspended sentence admitted hearsay testimony, it became harmless in the light of all the testimony and the fact that the jury assessed the lowest punishment. The opinion on rehearing concedes the error but puts the affirmance on the ground that it was harmless, especially so because appellant received the lowest punishment. Appellant was on trial for burglary, which is a serious felony in its nature and punishment under the Penal Code. To be convicted of this offense is a serious matter to the defendant, whether he be justly or unjustly convicted. If the conviction should be proper, under the facts and law it renders a man infamous, bars him of all rights and privileges as a citizen of Texas; he can not vote, testify, and do other things that the citizen unconvicted of a felony can do. It is necessarily of serious moment to him whether he be guilty or innocent. If he be innocent or if he be convicted when he should not be, there are other serious matters added to what has been stated where a just and legal conviction is obtained. He is made to suffer punishment in addition to the infamy engendered by reason of the conviction which he ought not to endure. In Texas we have at least two leading propositions with reference to the trial of criminal cases, first, the legitimate facts must show guilt; second, only legitimate facts and legitimate methods shall be indulged to obtain the conviction. He may be guilty, but if methods and means are resorted to to obtain a conviction not authorized or justified by the law, the law has been prostituted beyond its purpose and beyond the authority invested in the court by legislative enactment. We do not legally convict men in Texas on illegitimate testimony or for offenses not denounced by the statute. All crimes in Texas are statutory. In fact, there can be no violation of law in Texas unless the Legislature has defined the offense before the man is tried or commits the act for which he is being tried. Recognizing this to some extent at least the majority of this court in the instant case held that inasmuch as appellant received the lowest punishment, therefore this illegal testimony was harmless error. As before stated, this testimony was not admissible on the plea of suspended sentence. The issue was not before the jury. Defendant offered no testimony and the court expressly so instructed the jury, and this court in the majority opinion says the trial court was correct. Now we have the testimony set out in a bill of exceptions, or rather the statement of the witness recorded in the bill, which is purely hearsay, and the court says that the statement of the witness, although hearsay, was harmless. I do not understand how this statement of the majority opinion can be justified. The law presumes the defendant innocent until his guilt is established by legal testimony to the exclusion of the reasonable doubt. Here is a case where the guilt is not conceded. The defendant is fighting for his liberty. The burden is on the State to prove his guilt beyond a reasonable doubt to the exclusion of the presumption of innocence. The State is permitted to prove by the witness Kendall that a man named DeWitt *Page 537 told him that defendant's picture was in the rogue's gallery, which, of course, means that he belongs to the confirmed criminal class. What becomes of the presumption of innocence? If the rogue's gallery does not mean he is a confirmed criminal, then the writer does not understand what it does mean. When a picture of a man is placed in the rogue's gallery, it publishes that he is a criminal. The fact that the picture was in the gallery was not even proved by the witness, but he stated that Mr. DeWitt told him it was there Now we have a case sharply presented that the defendant is not legally guilty. The law says he is presumed innocent until his guilt is established by legal testimony beyond a reasonable doubt. The State is permitted to introduce testimony of the witness Kendall that Mr. DeWitt told him the defendant was such a confirmed criminal that they had placed his picture in the rogue's gallery. If this is not damaging the writer does not understand what sort of testimony or what sort of illegitimate evidence would be damaging, but the "antinomian cloak" of "harmless error" is thrown over the transaction, and the defendant in the face of this record must serve a term in the penitentiary. There may be cases of harmless error, but in a case like this it ceases to be harmless error. There are two rules the writer has always understood to be fundamental with reference to this question and to which the doctrine of harmless error can not apply. First, if the ruling of the court is error or if the introduction of the evidence would probably lead to or assist the State in getting a conviction when the guilt was in doubt, or the jury may or could take the opposite view and acquit, then the error can not be harmless. But for this ruling of the court the jury may have taken a different view and acquitted. It was a fact of damaging force and effect that the defendant's picture was in the rogue's gallery, and, therefore, a confirmed criminal, even if it had been proved as a fact, which even then ought not to have been permitted, but where it is purely hearsay that somebody else said that they had his "mug" or picture in the rogue's gallery the error becomes doubly intensified. It may have turned the scale in the minds of the jury. The jury came before the court and asked with reference to an instruction as to the plea of suspended sentence, and the court declined to give it. This shows the bent of the jurors' minds, and this identical testimony may have been the turning point in their minds. They wanted to give the defendant the benefit of the suspended sentence. The court informed them they should not consider it, but this testimony remained before that jury, and whatever else may be said about it, there is no escaping the statement and conclusion that the defendant's guilt was declared by the verdict of the jury and affirmed by this court. He is in the penitentiary, or soon will be upon the issuance of the mandate of this court. That he has been damaged is not to be questioned. Then I restate this rule, that wherever the error is of such a nature as may have probably influenced the jury to a conviction, when it might not possibly have occurred, it is reversible error. This is not debatable, and ought not to be in Texas. The second rule is that where the testimony admitted *Page 538 may have led the jury to assess a higher punishment than the minimum, then if is reversible error.

There is another view that might be presented in this particular case. The testimony upon which the State relied was practically all from accomplices. The jury, of course, was instructed under those circumstances that if there is any evidence in the record tending to connect the defendant with the offense committed, it would be sufficient to justify the jury in a verdict of guilt, provided they believed the testimony of the accomplices. The jury does not understand or appreciate as a rule close questions of that sort; they take a broader view and do not generally understand what fact tends to connect the defendant with the offense about which the accomplice testified. This is so well recognized by the courts and bar that I do not care to discuss it. Then where a matter of this sort comes and hearsay evidence of the fact that a man is such a notorious criminal that they have placed his picture in the rogue's gallery at different places, or even as in the place testified by Kendall, it may have been taken by the jury as such evidence of his guilt that he was connected with the offense of burglary charged in the indictment.

Much might be written along these lines, but I have written as above because I believe this conviction was unjustly and illegally obtained; that defendant has not had a fair trial accorded him by the law of the land. For these reasons I respectfully enter my dissent.