May v. State

127 S.W. 832, 59 Tex. Crim. 141, 1910 Tex. Crim. App. LEXIS 243

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 1910
• Docket: No. 508.
• Status: Published

Opinions

RAMSEY, Judge.

Appellant was convicted in the County Court of Titus County on December 11 last on a charge of using abusive ■ language to and concerning one White, and his punishment assessed at a fine of $5.

1. Complaint is made of the charge of the court in that it does not apply the law to the facts of this case. The general charge quotes the statute, and says: “If you believe beyond a reasonable doubt from the testimony that the defendant is guilty as charged you will convict him.” The charge of the court is indeed subject to the criticisms leveled against it, but we find in the record no bill of exceptions taken at the time excepting to same in the respect mentioned, and we would not, therefore, be justified in reversing the judgment on this account. We suggest, however, in view of another trial, the importance and necessity of the court succinctly and distinctly applying the law to the facts of the case.

2. During the trial, and while appellant was on the witness stand, he was asked if he had not been convicted in the case on a former trial of the case, to which he answered, yes. The bill recites that this question was asked by the county attorney, who insisted on appellant answering said question while his counsel was objecting thereto, and continued to ask said question, and insisted on an answer until appellant did make the answer that he had been convicted in this case on a former trial. The bill recites that counsel for appellant objected to the question and answer because same were not permissible under the law; that appellant while on the witness stand testifying in his own behalf could not be forced to tell that he had been convicted in a former trial, and that said question and answer were illegal, to all of which at the time appellant, by his counsel, excepted. The bill of exception evidencing this matter was allowed with the qualification that the question was asked and answered by appellant before the court could make a ruling. We gather, from this condition of the record, that the statements in the bill are true; that the question was being insisted on and answer thereto insisted on while counsel for appellant was endeavoring to make his objection to same and prevent an answer thereto. We think that the action of the prosecuting officer in undertaking to force and compel an answer so clearly violative of the statute was such misconduct as ought in this case and every such case to demand and compel a reversal. Richardson v. State, 33 Texas Crim. Rep., 519; Davis v. State, 54 Texas Crim. Rep., 236; Wyatt v. State, decided at the present term.

For the error pointed out, the judgment of the court below is reversed and the cause is remanded.

Reversed and remanded.

ON REHEARING.

' April 19, 1910.