# Stiles v. State > Court of Criminal Appeals of Texas · February 7, 1940 · 139 Tex. Crim. 444 URL: https://www.frixlaw.com/law-library/cases/4900020 ## Case - **Full name:** Bill Stiles v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 7, 1940 - **Citations:** 139 Tex. Crim. 444; 141 S.W.2d 327; 1940 Tex. Crim. App. LEXIS 401 - **Precedential status:** Published - **Opinion:** On rehearing by Hawkins - **Judges:** Christian, Hawkins - **Cited by:** 2 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/4900020 ## Opinion text ON MOTION FOR REHEARING. HAWKINS, Presiding Judge. Appellant insists that even if the testimony of his wife was cumulative of that of his mother, still it was error under the circumstances here present for the trial court to deny a second continuance sought because of the absence of his wife on account of her illness. Appellant cites a number of cases to support his position. We find it unnecessary to review the said authorities because under the record we think no reversible error may be predicated on the refusal of the continuance. Unless we entirely misapprehend the record, it reveals the following facts as it relates to the matter of the continuance. It is stated in the application for continuance that appellant’s wife would testify that: “* * * she was present and heard a conversation between defendant and Ed Bartlett at the gin, and that the said defendant did not tell Ed. Bartlett that he had stolen the money of the gin company or the gin or anyone else, but that defendant told said Bartlett that if the books of the gin or gin company showed that he was short that he would pay for said shortage, whatever it was, but denied that he had stolen any money from the said gin or said gin company.” The statement of facts shows that Ed Bartlett had more than one conversation with appellant at the gin about the shortage. On one occasion Bartlett sent for appellant to come *450 to the gin, and there were present at the ensuing conversation Mr. Brown and Leon Bartlett, Ed Bartlett and appellant. Ed Bartlett testified that in said conversation appellant said: “* * * As to what Bill Stiles said about it: He just said that he had been stealing from us, and I showed him the checks, and he said, ‘Yes, this was the money he got,’ and Mr. Brown asked him if he had used the money and spent it on somebody else and he said that he had used it all. Not all of the checks were there. I asked him about the missing checks and he said that he would look at the other gin, and when he started for the other gin he said, ‘Mr. Bartlett, I have been stealing from you and I have been wanting to tell you about it for a long time but I just have not had the guts to do it. There is not any use to go hunting the checks. I got that money.’ ” On cross examination at the instance of appellant’s counsel Ed Bartlett further testified: “* * * I remember having a conversation with him on an occasion when his wife and mother or some of them were there. It was after that. I do not know just how long, but a week or two. At that time it was with reference to a shortage in the gin account. He said, ‘If I am short in that gin account I will fix it up and pay it.’ He said that he would try to do it.” It is apparent from what has been stated that Bartlett himself admitted that in the conversation with appellant when his wife and mother were present at the gin that appellant said exactly what appellant’s wife would have testified he did say, — if she had been a witness on the trial. Because of this, we fail to see how the refusal of the continuance could in any way have been a basis for a reversal. Appellant also states in his application for continuance that his wife, if present, would have testified that W. E. Wallace came to her house on one occasion and told her that appellant “was in trouble with him (Wallace) and that if she, defendant’s wife, would be good to him (Wallace) and treat him just right, that all would be forgotten.” This was purely an impeaching statement, if a predicate for the impeachment of Wallace could properly be laid on the matter indicated. A continuance will not ordinarily be granted to secure evidence which would only be available to impeach a witness who is expected to testify. Branch’s Ann. Tex. P. C., Sec. 324, and authorities there cited. It appears from bill of exception number five that appellant soug’ht to lay a predicate for the impeachment of the *451 witness W. E. (Ed) Wallace by asking him in the absence of the jury, “* * * if he did not go to defendant’s house before any indictment was returned and had a conversation with defendant’s wife in which conversation he told the defendant’s wife that he, witness, was having some trouble with Bill, her husband, and that if she would be good to him, or do what he wanted, that he, Ed Wallace, would quash it.” Witness Wallace denied having any such conversation with appellant’s wife. The bill brings forward the complaint that the court declined to permit the question to be asked the witness in the presence' of the jury. Mr. Branch in his Ann. Tex. P. C., in Sec. 165, with many supporting authorities, announces the following principle. “It is not proper to allow a witness to be cross examined as to any matter which is collateral and immaterial to the issue merely for the purpose of contradicting him by other evidence.” “When a witness is cross examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question.” It will be observed that the statement attributed to the witness by the question does not admit or intimate that no basis existed for the trouble he was having with appellant, but only that the investigation thereof would be discontinued or “quashed” under certain contingencies arrived at by inference from the question propounded. If the purported statement had been established it would have been uncomplimentary to the witness and subjected him to criticism, but it seems to be immaterial to the issue of whether appellant had embezzled funds belonging to the gin company. The rules quoted above seem to be applicable. The bill under consideration presents no error. All other bills of exception adverted to in appellant’s motion for rehearing have been again examined. When considered in connection with the appended explanation of the trial court none of them is thought to present reversible error, or to require extended discussion. The motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4900020. Public record. Not legal advice.