Ballinger v. State

11 Tex. Ct. App. 323

Opinions

White, P. J.

Three parties were originally charged with the theft. Upon their arrest they had three separate trials before an examining court; at which trials the testimony of the witnesses was reduced to writing. Subsequently two at least of the parties charged were separately indicted; one of whom was appellant. Upon his trial, two of the most important State’s witnesses being absent, the district attorney made affidavit under authority of article 113 of the Code of Criminal Procedure, that the said witnesses had removed beyond the limits of the State and jurisdiction of the court, and asked to introduce, and was permitted by the court to introduce, the testimony of said witnesses taken at the examining trial of appellant Ballinger. (Code Crim. Proc. art. 112.)

Defendant, for the purpose of impeaching this testimony by showing contradictory statements of the witnesses with regard to the same transaction, offered the written testimony of these same witnesses taken at the examining trial of Gussie Reagan, one of the other parties who had originally been implicated in the crime. The prosecution objected to this impeaching evidence, upon the ground that no predicate had been laid, nor opportunity offered the witnesses for explanation; which objection was sustained and forms the basis of the principal error complained of.

The general rule, and it is the one which has uniformly prevailed in Texas, is stated very concisely and explicitly by Mr. Wharton in his work on Evidence. He says, “ When it is thus intended to discredit a witness by showing that he has on former occasions made statements inconsistent with those made on trial, it is usually requisite to ask him on cross-examination whether he has not made such prior contradictory statements. The question to this effect should specify, so it is said, the person to whom the alleged contradictory statements were made, and as far as possible the time and place. Only upon denial, direct or qualified, by the witness that such statements were made can proof of them be offered. The object of this condition is to enable the witness to recall the incidents and to explain the inconsistency, if there be such. So a witness, not a party, cannot be impeached by putting in evidence his letters unless his attention be called to these letters on his cross-examination, and the other party have an opportunity of examining him thereto. It has been even held that where the deposition of a deceased witness had been by consent read in evidence, another and conflicting deposition of the same witness at a prior trial could not be read in order to impeach the witness, as the attention of the witness had not been called to the conflict.” 1 Whart. on Ev. (2d ed.) § 555.

If his prior depositions in the same case cannot be thus used, a fortiori his depositions in another and different case ought not and should not be used. Our statute allowing the testimony of a witness taken at an examining trial to be used subsequently on the final trial, where the witness is beyond the jurisdiction of the court, is an innovation upon the ancient common law, and, in view of the constitutional guarantee that an accused shall have the right to be confronted with the witnesses against him, is permitted solely ex necessitate and under circumstances where it appears he did confront the witness and have the right thoroughly to examine and cross-examine him, whether he exercised the right or not upon all the matters testified to by him. We do not think it would be the part of wisdom or sound policy to extend the rule further, and allow such testimony thus taken to be nullified and destroyed entirely by parties, who from their own laches or indifference have failed to have it as full and satisfactory as it might have been, had proper diligence been promptly used" in the' assertion'and protection of their rights at the proper time. We are of opinion the court did not err in refusing to allow the introduction of the supposed contradictory evidence.

With regard to the witness Leston it was attempted, after the trial' and in the motion for new trial, by the force of counter-affidavits to annul and destroy the affidavit of the district attorney, to the effect that this witness was also beyond the jurisdiction of the court, said affidavit having been made as a predicate for the introduction of his testimony taken at the examining trial. These counter-affidavits came too late to avail defendant, and they fail to show that the facts stated were not accessible, or might not have been accessible by the usé of proper diligence at the time when the affidavit of the district attorney was filed and acted upon. Steps should then and there have been taken by deféndant to controvert the affidavit. He cannot be allowed, after he has failed to complain at the proper time, and has speculated upon the chances, or be heard, to say that wrong has been done him when by his own inaction he has been one of the parties to the wrong. The court did not err in overruling the motion for a new trial, so far as it was based upon these counter-affidavits.

[After the delivery of the foregoing opinion the counsel for the appellant filed a motion for a rehearing, which elicited from the court the opinion which follows.— Reporters.]

We have examined the record in this case with more than ordinary care, and the two questions above noticed are the only ones requiring discussion. For aught else that appears, defendant seems in our opinion to have had a most fair and impartial trial,—a trial in which the law applicable to the facts was most ably expounded by the court to the jury,— and one in which the inculpatory facts adduced against defendant are amply sufficient to support the verdict and judgment rendered.

The judgment is affirmed.

Affirmed.