Stockholm v. State

Hurt, Judge.

The defense asked a continuance of the case on account of the absence of the leading counsel, Hal W. Greer, which was denied, and this was urged as érror. It is not made to appear in the motion for a new trial, or otherwise, that any injury resulted to appellant, he having had the services of two attorneys. This being so, the refusal of the continuance was not error. (Booth v. The State, 4 Texas Ct. App., 217.)

The appellant and one Patridge were jointly indicted and at a former term, a severance being granted, appellant was convicted and Patridge acquitted. The motion for a new trial in appellant’s case was supported by the affidavit of Patridge, and was granted. *602Upon this trial the defense offered in evidence this supporting affidavit of Patridge, it having been shown that he was dead. This evidence the court rejected, and this is urged as error. The ruling of the court was correct. We know no rule of evidence holding such a document competent evidence bearing upon any issue in the case.

Opinion delivered February 1, 1888.

The court charged the jury as follows: “When the general reputation'of a witness for truth and veracity in the community in which he lives has been attacked, the inquiry must be confined to his general reputation, and not what a particular individual or a few individuals may believe concerning him, and the investigation is to be confined to his general reputation for truth and veracity, and should not extend to his general moral character; and the jury is authorized to refuse to credit and believe any witness whose reputation has been so attacked, or you may credit and. believe him as you see fit and proper, and believe to be proper to do so, just as though his reputation had not been so attacked; for, as before told you, you are the sole and exclusive judges of the credibility of each and all of the witnesses who have testified before you in the case.” Several witnesses having testified, for the defense, in effect, that the reputation of the State’s witness, George White, for truth and veracity was bad, it is urged that the charge is objectionable as being on the weight of evidence.

This charge was wrong, and under the peculiar facts of this case it was evidently injurious to appellant. See such a charge discussed in Bishop v. The State, 43 Texas, 394; 1 Texas Court of Appeals, 440; Leverett v. The State, 3 Texas Court of Appeals 213.

This error in the charge of the court, under the facts of this case, though not excepted to, requires a reversal of the judgment. There are no other errors assigned.

Reversed and remanded.