Messenger v. State

PRENDERGAST, Judge

(dissenting). — This case should he affirmed; not reversed. The record distinctly and positively shows that the case was called for trial on March 1, 1917; that the. State was represented by the county attorney and the defendant in person and by an attorney, and that both parties announced ready for trial and the defendant in open court entered his plea of “not guilty.” A jury trial was had and he was found guilty. , This is nowhere disputed in the record.

One bill shows that after the jury had been empaneled, the county attorney read the complaint and introduced the witness Standridge, and that after he had been questioned as to his name and residence and asked if he knew appellant, he was then asked, “whether or not he had ever seen the defendant and Ada Goodman together.” Whereupon, the defendant objected to said testimony or any testimony by said witness for the reason that the information had not been read in compliance with the statute. The court in qualifying the bill states: “It was offered by State to read information and defense objected, whereupon court ordered trial to proceed without reading of information,” and the trial did then proceed.

This, under the express decision of this court in Barbee v. State, 32 Texas Crim. Rep., 171 , in an opinion by Judge Davidson, was a waiver of the reading of the information. In the Barbee case, which was a felony, the indictment through inadvertence had not been read and this was not discovered until after all of the evidence had been introduced. Thereupon Barbee objected to the district attorney then reading the indictment. The district attorney also offered to reintroduce the evidence, to which defendant objected upon the ground that it had already been placed before the court and jury. The court, through Judge Davidson, held: “The court held this to be a waiver of the reintroduction of the testimony, and sustained the objection. We are of opinion the ruling was correct. . . . Under the circumstances, its reintroduction would have been more of a formality than otherwise, and was, we think, waived by defendant. . . . While, under the terms of the Code of Criminal Procedure, article 660, it is mandatory that the indictment be read to the jury before .the evidence is offered, and while it may be true the conviction would be illegal should this not he done, it would nevertheless be proper, upon discovery of this omission, to read such indictment to the jury, and reintroduce the testimony; and it is an equally correct proposition, that the accused could waive both the reading of the indictment and the reintroduction of the evidence. We are of opinion that the ruling of the court in the matter complained of was not erroneous”; and the judgment in that case was affirmed.

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The case of Essary v. State, 53 Texas Crim. Rep., 596 , cited as sustaining the majority opinion in this case, does not do so, and is wholly inapplicable to the question. The syllabus on the point in that case clearly expresses what was decided therein. It is: “Where upon trial for murder it appeared that all the testimony of the State was offered before the indictment was read, or before any plea on the part of the defendant had been entered, and there was no offer made by the State to reintroduce the .testimony, the same was reversible error under article 697, Code Criminal Procedure.” In that case the Barbee case, above referred to, is expressly cited, quoted from and approved. Besides the bill in no way discloses what testimony, if any, the State’s witness Standridge gave, hence in no event did that bill present any error.

The other point decided by the majority opinion is in direct conflict with the statute and all the decisions thereunder. The bill on this point shoxvs that the woman had made a written statement before the officers wherein she expressly swore that appellant had had sexual intercourse with her repeatedly, frequently and many times. The State relied upon her as its witness and introduced her as such with the idea that she would testify as she had already sworn. But instead of doing so she testified to the reverse, that appellant had never had sexual intercourse with her at any time. A statement is made in the opinion herein to the effect that this testimony by her “was not injurious to the State.” A strange statement. I do not know how anything could have been more injurious to the State. She had stated before to the officers in a sworn statement that he had had intercourse with her as stated above, and now when the State relied upon her and introduced her . to prove the same thing by her she positively swore he had never had intercourse with her at any time. The statute expressly states (art. 815, C. C. P.): “The rule that a party, introducing a witness, shall not attack his testimony -is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness.” It had always heretofore been held in compliance with the statute that when either party in reliance upon what a witness said he would swear introduces such witness and he swears the reverse of it that whichever side introduced him can impeach him by showing that he before made a reverse statement, and that by showing surprise, which was done in this case, can impeach the witness by showing the previous statement. For a collation of some of the authorities see the note under said aiticle in

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Vernon’s Criminal Statutes, p. 763.

The immunity of the witness has no application in this case. She did not fail to testify but she did testify and testified the reverse of what she had previously sworn arid stated to the officers she would swear.

The evidence is amply sufficient to sustain the conviction and the judgment should have been affirmed and not reversed. I dissent.