Kennedy v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

The State’s attorneys have filed a motion herein alleging that we were in error in our reversal and insisting that they were well within their rights and the law in propounding to the witness the question complained of in Bill of Exceptions No. 6 as follows:

“Q. Had you heard, Mr. Bradley, before this occurrence, of the defendant having some illicit relationship with a neighbor woman out there? A. I had not.

“MR. McCOLLUM: I object to that and we want a bill of exception to the district attorney making inquiry into a matter like that; that might be very inflammatory, and any question of that character we want a bill of exception to it.

“COURT: I sustain the objection, and Gentlemen of the Jury, do not consider that question for any purpose.

“MR. McCOLLUM: We want the bill on it even though the court has given that instruction to the jury.

“Q. Mr. Bradley, did you hear any — had you heard anything before this occurrence of Alvin Kennedy having illicit relationship with any woman out there?

“MR. GIB CALLAWAY: “We thought the court had excluded such questions; we object to it; it has no bearing on the question of the defendant’s reputation for being a peaceable, law-abiding and of being an inoffensive disposition; and that is all that is material, and such questions as that are highly inflammatory and prejudicial.

*227 “COURT: I overrule the objection.

MR. GIB CALLAWAY: Please note our exception. A. Will you ask it again.

“Q. Had you heard anything about him having illicit relations with a woman in that neighborhood? A. I had not.”

The trial court qualified this bill with the following statement :

“This witness had testified on direct examination that the general reputation of the defendant in that community as to being a quiet, peaceable and law-abiding citizen, was good.”

It will be noted that when this question was first propounded to the wintess, the careful trial court sustained an objection thereto and immediately thereafter practically the same question was again propounded. It is also worthy of note that no other character witness of appellant was asked this question or one similar thereto.

Webster defines “illicit” to mean “not permitted or allowed; improper; unlawful.” Evidently the phrase “illicit relations”, as used in this question, referred to and meant unlawful sexual relations with some woman; and on account of the marital status of appellant, if such relations were habitual, the same would constitute adultery as denounced by Art. 499, P. C. However, the decisions seem to have been rather stringent in construing the word “habitual”, although no hard and fast rule has been laid down relative thereto. Proof of occasional acts are not sufficient to show habitual intercourse. See Hafley v. State, 88 Tex. Cr. R. 51, 224 , S. W. 1099; Reynolds v. State, 100 Tex. Cr. R. 508 , 271 S. W. 907 ; Cordill v. State, 83 Tex. Cr. R. 74 , 201 S. W. 181 . While such occasional relations would doubtless offend against the moral law, the inference that such did thus offend is plainly seen from the repeated question. The statutory law does not thus denounce such as an act contrary to the statute. Therefore, we think our original opinion was correct in its holding that a rumor relative to such relations would not be admissible as a test of the credibility of a witness who had given testimony that appellant’s reputation for being law-abiding was good.

Relative to Bill of Exception No. 10, it is shown that the members of the Willey family, consisting of two older girls, one boy and two younger girls, were having some family differ *228 enees. The deceased, the only boy, was living at the home place and was practically in charge of the mother’s business, she being very old, and to some extent under the domination of the deceased. He had recently obtained from her an option to purchase the tract rented to appellant for a consideration of $47.50 per acre with no reservation of the minerals to the mother. Appellant, upon ascertaining this, offered $57.50, and the mother was to retain the minerals under such land, which offer was rejected. The main cause of discord in the family was the favoritism shown the deceased. Under such circumstances the mother was placed on the stand and, over appellant’s objections, was allowed to testify as follows:

“Q. Mrs. Willey, how was Rice’s attitude toward you; was he good to you or mean to you?

“MR. CALLAWAY: We object to that as calling for her conclusion; we have no objection to her stating the facts.

“COURT: The objection is overruled.

“MR. CALLAWAY: Note our exception.

“Q. How about it, Mrs. Wiley? A. No, sir, he was not mean to me.

“Q. Was he good to you? A. Yes, sir, I think he was a good boy, an average good boy.

“MR. CALLAWAY: We want our exception to this as being merely a conclusion of the witness.”

We think this statement was a conclusion of the witness, was damaging to appellant, and should not have been allowed. The facts as tb the deceased’s treatment of his mother could have been drawn from her by the State as pertinent, but the conclusion relative thereto was but an opinion, and the jury should have, after hearing the facts, been allowed to draw their own conclusion therefrom.

Bill of Exception No. 3 complains of the following procedure: After the State had finished placing its testimony on the stand, one of appellant’s attorneyes made a statement before the jury relative to the facts expected to be proved by the defendant. At the conclusion of such statement the trial court voluntarily stated to the jury:

“Gentlemen of the Jury: Of course, you will not consider the. statements of counsel as being any evidence in this case; but merely as a statement of what he intends to prove.”

*229 To which counsel for appellant excepted for the reason “that the law authorized such statement by the defense counsel to be made, and that the remarks of the court were oral instructions to the jury and prejudicial to the rights of the defendant.” The privilege of making such statement is a valuable right provided by statute (Art. 642, sub. 5, C. C. P.), and if denied, would constitute error. See Hooper v. State, 100 Tex. Cr. R. 147 , 272 S. W. 493 ; Brown v. State, 90 Tex. Cr. R. 231 , 234 S. W. 390 ; Dugan v. State, 82 Tex. Cr. R. 422 , 199 S. W. 616 . Of course, this statement should follow the statutory privilege, and the trial court should control the same, holding it within such terms.

Subdivision 5 of Article 642, C. C. P., reads as follows:

“The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant’s counsel.

In the present bill, it is not shown what such counsel had stated to the jury that called for the oral instruction of the court. Verbal charges to the jury are not allowed in felony cases. Art. 663, C. C. P. Under Art. 658, C. C. P., the court should set forth in writing the law applicable to the case, “not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts, or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.” It would have been the better practice for the trial court to have made no comment upon the exercise of appellant’s right to make such statement to the jury at the proper time, provided, of course, that appellant’s attorney had made it plain in such statement that such were the facts he expected to prove. If such was not made plain, then the trial court had the right and duty to hold such a statement within the provisions of Art. 642, supra.

This cause has been carefully scrutinized by all the members of this court, who think the original opinion herein was correct in its reversal, and the motion for a rehearing will therefore be overruled.

HAWKINS, Presiding Judge, absent.