Ludwig v. State

298 S.W.2d 166, 164 Tex. Crim. 295, 1956 Tex. Crim. App. LEXIS 950

Opinions

MORRISON, Presiding Judge.

The indictment charged that Otto Ludwig and appellant, with malice aforethought, shot one Henry Roach with a shotgun, with intent to murder him.

At the close of the evidence, the trial court submitted the case to the jury under a charge authorizing conviction of assault with intent to murder with and without malice and of aggravated assault, and the jury returned a verdict finding Otto Ludwig guilty of assault with intent to murder without malice, with punishment of three years in the penitentiary, and by separate verdict found appellant guilty of aggravated assault and assessed his punishment at nine months in jail.

Both defendants appealed to this Court, but thereafter Otto Ludwig’s request that his appeal be dismissed was granted, and the appeal of Raymond Eugene Ludwig alone is before us.

In view of our disposition of this cause here before us, recitation of the facts will not be deemed necessary other than to observe that the appellant’s father was identified by the witnesses as being present at the time the offense was committed, but the appellant himself was not identified by any witness as one of the two persons who participated in the assault upon the lonely country lane. The State’s case was then based upon circumstantial evidence. As a circumstance to show that the appellant participated in the instant assault, the State tendered the witness Knox, who testified that at some time prior to the offense charged in the indictment the appellant and his father, both.of whom he identified, had threatened to commit a similar assault upon him at about the same place on the same country lane. It is obvious that this was evidence of compelling probative force and in our judgment was sufficient, together with the other evidence, to authorize the jury to return a verdict finding that the appellant participated in the instant assault.

Knox testified that he had gone to the country lane on the night about which he testified in company with a “woman companion.” When Knox y;as being cross-examined, he was asked to name his companion of the evening; he answered that he would rather not do so, and appellant’s counsel moved the court to instruct the witness to answer. This, the court declined to do and thereby fell into serious error. It is obvious from that which; has been said that this woman companion -was a very material witness to one of 'the State’s strongest links in its chain of. circumstances. She was not called as a witness,- and when the appellant sought to learn-her identity he was unable to do so because of the ruling of the court. If her identity had’been made known to the appellant, he could-have interviewed her with the thought of calling her as a witness. If she had denied that she was with Knox on the night about which he testified or described the men who threatened them in such a manner as to- preclude the appellant being one of them, the.effect of such testimony would have been telling.

The error here shown is so apparent as to hardly require the citation of authority.

Article 1, § 10, of the Bill of Rights of our Texas Constitution, Vernon’s Ann. St., guarantees to an accused the right to be confronted by the witnesses against him.

This right to be confronted by the witnesses carries with it the right to- cross-examine them. 44 Tex.Jur. 145, p. 1142; Bell v. State, 2 Tex.App. 215; and Weaver v. State, 129 Tex.Cr.R. 317, 86 S.W.2d 758.

The action of the court in refusing to instruct the .witness to answer. the question constituted an undue abridgement *of ap* pellant’s right of cross-examination of the witness on a material matter and was reversible error.

Upon another trial, the injured party should not be permitted on direct examination to bolster his own testimony by hearsay concerning the examination of pictures.

For the errors pointed out, the judgment is reversed and the cause remanded.