# West and Hernandez v. State > Court of Criminal Appeals of Texas · March 12, 1930 · 116 Tex. Crim. 468 URL: https://www.frixlaw.com/law-library/cases/3959668 ## Case - **Full name:** R. J. West and Tom Hernandez v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 12, 1930 - **Citations:** 116 Tex. Crim. 468; 34 S.W.2d 253; 1930 Tex. Crim. App. LEXIS 794 - **Precedential status:** Published - **Opinion:** Addendum by Hawkins - **Judges:** Christian, Hawkins, Morrow - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3959668 ## Opinion text ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING. HAWKINS, Judge. Appellant has presented a request for leave to file a second motion for rehearing. In the document is a *487 reference to the result of another case and copies of court proceedings therein. These matters have no proper place in the present record and will be stricken from the document. All other matters in the request, save those hereafter mentioned, have had consideration on original submission and on rehearing and will not be again reviewed. In the original opinion bills of exception 5, 8 and 9-were not considered because in question and answer form, without a certificate from the trial judge that in his opinion it was necessary to incorporate the questions and answers to elucidate the point involved. Art. 760, Subd. 3, C. C. P. (1925). Cases are collated in Note 23, under Art. 667, Vernon’s C. C. P., Vol. 2. In his motion for rehearing appellant directed attention to the fact that said bills on their face show to have been prepared by the trial judge in lieu of bills presented by appellant. In some way this escaped our attention. Art. 667, C. C. P. (1925) refers us to the Civil Code for the “rules” regarding the preparation of bills of exception. Art. 2237, Subd. 8, R. C. S., Vol. 1, (1925) directs that the judge under certain circumstances shall prepare such bills of exception as he thinks reflects the ruling of the court and file it with the clerk. This having been done in the present instance appellant had no control over the form of the bills and unless they are considered it is tantamount to depriving appellant of his bills on the points involved therein, hence they will be considered. Bill number five shows that Louisa Garcia Fee, a state’s witness, had testified that she was taken before the grand jury during their investigation of Harry Williams’ death and that she refused to testify because she was afraid of West (one of the appellants) and that she was brought before the District Judge who remanded her to jail; that she decided to testify and was again taken before the grand jury and did testify before that body. There is then set out in the bill a page and a half of questions and answers on the cross-examination of the witness, at which point a question was asked which state’s counsel deemed argumentative and objection was interposed on that ground and was sustained. If any exception was taken to the court’s ruling the bill fails to show it, and totally fails to show what the witness’ answer would have been if the question had been permitted. The bill then proceeds with three or four pages of questions and answers relative to witness being taken to jail, at whose order, and about her return to the grand jury. The only tangible thing discoverable occurred when appellant’s counsel asked the following question. “They took you before the grand jury *488 and told you to swear the way they wanted you to swear it and they turned you loose, didn’t they ?” to which the witness answered, “No, sir, they did not.” After the witness had answered counsel for the state objected to the form of the question and the court remarked, “I do not understand that as proper cross procedure, I never heard of it being done in my life before.” Exception was taken to the court’s remark. It is not made to appear by said bill that counsel was in any way restricted in the cross-examination of this witness, and we fail to discover anything in the court’s remark which violates Art. 707 C. C. P. (1925) which precludes the trial judge from commenting upon the weight of the evidence or its bearing on the case, or making any remark calculated to convey to the jury his opinion of the case. Bill number eight reflects that Alicia McLeod testified that after she left the room where she had been with Buck Hood that she went to the kitchen where she met Maria Alatorres, the proprietress of the house, gave her a dollar, and said that Maria told her to hide because there were some officers in the front room; that witness did hide as directed by Maria. Bill number nine shows that this same witness testified that when she came out of hiding Maria told witness “the scandal was over,” and for her to go upstairs where a boy was waiting for witness. The bills show that in each instance appellants objected to what Maria said to the witness as not being res gestae, and being said out of appellants’ presence. . The court seems to have admitted it as res gestae. We consider it unnecessary to discuss the ruling of the court from that angle. Appellants used Maria Alatorres as a witness and from her the state elicited without objection from appellants the testimony that she did tell Alicia McLeod everything said witness claimed was told her by Maria, save that the latter denied saying to Alicia that the “scandal was over.” It has long been the accepted rule that where evidence from one witness is objected to but the same evidence goes into the case from another witness without objection that no reversible error is shown. We refrain from discussing the principle but refer to Machado v. State, 112 Tex. Cr. R. 538 , 17 S. W. (2d) 1060 and Stone v. State, 22 S. W. (2d) 140 , in which cases many authorities both old and recent are collated. This disposition of the matter leaves only for consideration the sole controverted statement that “the scandal was over.” It is shown in bill number nine that witness McLeod was asked what was the “scandal” and replied, “I do not know, she (Maria Alatorres) just *489 said ‘the scandal.’ If it be conceded that this statement was hearsay it by no means necessarily follows that it would call for a reversal. It seems to have been pretty well established that the officers were in a bad humor because the girls would not go with them to the Love farm, and that West made threats to arrest all of them, including Maria Alatorres, and put them in jail. The inmates of the house were considerably disturbed over the situation, and Maria’s statement to Alicia may well be attributed to the confusion and disturbance caused by the threats of West, which Maria thought was over, the officers having gone. She claimed the reason she told Alicia to hide was because she (Maria) did not want Alicia to accompany the officers to the farm in question, and after they left she called Alicia from hiding and according to Alicia’s testimony, used the language indicated. If it was hearsay, in our opinion, it presents no such damaging matter as would demand a reversal. Having fully considered the bills appellants’ second motion for rehearing is denied. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3959668. Public record. Not legal advice.