Wiley v. State

BEAUCHAMP, Judge. The appeal is from a conviction for murder with a sentence of twenty years in the penitentiary. Appellant lived in the home of his uncle, Dan King- and wife, Ellen, who were more than three score years and ten. On July 14th, 1948, appellant came to the home at about 7:30 in the evening and called for some money he had left with his uncle. The uncle declined to give him the money at that time, but told him to go sober up and come back in the morning and he would give it to him; that if he had it then he would throw it away. After some fuss between the parties appellant left, but soon returned and renewed the demand for his money. The evidence differs sharply as to what occurred thereafter. Both appellant and the deceased were just inside the door, while the wife of the deceased, in a helpless condition, was on the gallery. She testified that the appellant stabbed her husband and that he fell forward with blood gushing forth on the floor, and that appellant then left but was pursued and taken into custody. A neighbor also testified as to the occurrence in the manner contended for by the state. Appellant raised an issue of self-defense which was settled by the jury. The uncle died immediately. The defendant presented several witnesses who testified as to his good reputation. The assistant district attorney, in cross-examining these witnesses, asked them if they had heard about his being charged with certain offenses at specific times and places. Some witnesses answered in the negative and some partly in the affirmative. This evidence was produced over objection and then, at the proper time, the court was requested to limit in his charge the consideration which the jury might give to this evidence. It is appellant’s theory that the prosecuting attorney did not ask the questions in good faith, that it was an effort to create an impression that the accused had been convicted of other felonies, one of which was referred to as a murder. Though the state gave in his questions the specific time, place and person, this would seem to have been denied by appellant who testified that he had never been convicted of a felony in this or any other state. The state did not follow it up and offer any proof further than the questions to the witnesses. If, in fact, these offenses were not committed, as contended for by appellant, and the — 372 — prosecuting attorney did not ask the question in good faith, the conduct would at least be reprehensible and probably call for a reversal of the case. However, we have no showing to support the bills now before us upon which we could rely for the contention that the attorney did not act in good faith. Consequently, it is our conclusion that these bills do not show error. Stewart v. State, 188 S. W. (2d) 167. The next question raised is on the complaint that the court declined to amend his charge after objection had been filed and did not restrict the purpose for which this evidence was admitted. This matter was brought to the attention of the court at the proper time. The evidence of those character witnesses, who admitted that they had heard of some of the extraneous offenses inquired about, brought before the jury facts specifically detailed in the questions about extraneous offenses, for which appellant was not then on trial. Such evidence could not be admissible for an unlimited purpose as it stands in the record. The question has been recently discussed in Cause No. 24,172 on the docket of this court, C. L. Tweedle v. State, (Page 200 of this volume.) For further authorities see: Rosamond v. State, 263 S. W. 297, Bryant v. State, 271 S. W. 610; Pettiett v. State, 272 S. W. 473; Sanderson v. State, 3 S. W. (2d) 453; Robidoux v. State,34 S. W. (2d) 863; Fawcett v. State, 213 S. W. (2d) 830. The evidence was admissible to enable the jury to test the knowledge of the witnesses as to his reputation and the weight to be given to their testimony. It should have been so limited in the charge. The court fell into error requiring that this case be reversed and the cause be remanded for a new trial. It is so ordered.