Beland v. State

217 S.W. 147, 86 Tex. Crim. 285, 1919 Tex. Crim. App. LEXIS 410

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 1919
• Docket: No. 4573.
• Status: Published

Opinions

LATTIMORE, Judge.

—In this case appellant was convicted in the Criminal District Court of Tarrant County, of a felony theft, and his punishment fixed at three years confinement in the State penitentiary.

There are but two errors in the record which we will discuss:

On the trial, appellant offered to prove by the prosecuting witness himself, and by several other witnesses, that said prosecuting witness, upon whose testimony the State relied almost entirely for a conviction, was an habitual user of dope, to wit: cocaine, morphine, and opium. This testimony was excluded by the court on, the State’s objection. In this we think the court was, in error. It has been held in this State in a number of cases, that it may be shown that a witness was drunk at the time of the occurrence about which he seeks to testify: Green v. State, 53 Texas Crim. Rep., 490; Lewis v. State, 33 Tex. Crim. Rep., 618; Wallace v. State, 65 Texas Crim. Rep., 654, 145 S. W. Rep., 925.

We are of opinion that if it can be successfully established that a material witness is an habitual user of cocaine, morphine, or opium, that fact should be admitted as a circumstance to be considered by the jury in determining his memory and mental condition.

The other error is that relating to the refusal of the court to grant a new trial upon newly discovered evidence.

The principal witness for the appellant was attacked by the State, in such manner as to probably justify the jury in having doubts as to the truthfulness' of her testimony standing alone. The affidavits of two other witnesses, as to material facts strongly corroborating said principal witness for the defense, were attached to the appellant’s motion for a new trial, which motion sufficiently showed that the testimony of said parties was unknown to the appellant or to his attorneys, and could not have been discovered by the use of reasonable diligence. There was no attack by the State upon the motion for a new trial, and no effort to controvert any of the facts set up in said affidavits. We think the showing sufficient to have required the granting of a new trial.

We observe an error in the court’s charge, relative to the penalty, but in view of the verdict of the jury, do not regard this as material.

For the errors mentioned, the judgment of the trial court will be reversed and the cause remanded

Reversed and remanded.