
    CAMPBELL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 13, 1910.
    On Motion for Rehearing, June 14, 1911.)
    1. Bail (§ 66) — Appeai>-Recognizance.
    A recognizance, which does not state the amount of the punishment assessed against accused, as required by Code Cr. Proc. 1895, art. 887, is fatally defective, and the appeal must be dismissed.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1088) — Appeal—Questions Reviewable — Bills op Exception.
    Matters assigned in bills of exception not in the record cannot be considered on appeal.
    [Ed. Note. — -Eor other cases, see Criminal Law, Cent. Dig. § 2800; Dee. Dig. § 1088.]
    3. Witnesses (§ 243) — Examination op Witnesses — Leading Questions — Discretion oe Court.
    Where, on a trial for assault to rape prose-cutrix, 13 years old, it appeared that while testifying she cried, and the state had to coax her to give testimony, the court did not err in permitting the state to ask her, “Did he [accused] say anything about giving him some?”
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 795, 847; Dec. Dig. § 243.]
    4. Witnesses (§ 243) — Examination—Leading Questions — Discretion of Court.
    The court, on the examination of a witness of immature years and laboring under excitement, may permit leading questions in its discretion.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 847; Dee. Dig. § 243.]
    5. Criminal Law ' (§§ 419, 420) — Evidence— Hearsay Evidence.
    Statements of a third person, not a witness in the case, made in the absence of accused and prosecutrix, cannot be proved by the state or accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    6. Criminal Law (§ 400) — Evidence—Secondary Evidence.
    In the absence of ^roof of the loss or destruction of a letter, its contents cannot be proved by a witness who had read the letter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dee. Dig. § 400.]
    7. Witnesses (§ 395) — Impeachment—Corroboration.
    Where accused on trial for assault to rape sought to impeach prosecutrix by her mother as to what prosecutrix said after the occurrence, the testimony of a conversation with prosecu-trix, a few days after the occurrence, in support of her testimony on the trial, was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    8. Criminal Law (§ 699) — Trial — Argument of Counsel — Power of Court.
    As the court may limit the argument of counsel to the evidence, and must so conduct the case as to keep from the jury all matters not in evidence, it may instruct the jury not to consider outside matters inadvertently or intentionally brought to their attention by counsel in argument.
    [Ed. Law, 699.] Note. — For other cases, see Criminal Cent. Dig. §§ 1655, 1656; Dee. Dig. §
    9. Criminal Law (§ 726) — Argument of State’s Counsel in Response to Improp- ' er Argument of Counsel for Accused.
    Where counsel for accused discussed matters outside of the record, accused could not complain of objectionable remarks by state’s counsel in response to such argument.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    10. Criminal Law (§ 1037) — Improper Argument of Counsel — Review — Instruc- . TIONS.
    . In the absence of a requested charge directing the jury not to consider improper argument of state’s counsel, the" court on appeal will not review the matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    
      11. Witnesses (§'337)—Cross-Examination oi? Accused—Extent.
    Accused, testifying on lis own behalf, is subject to the same cross-examination as any other witness, and he may be asked about bis conviction of offenses involving turpitude to discredit him, if such offenses are recent.
    [Ed. Note.—For other cases,, see Witnesses, Cent. Dig. § 1113; Dee. Dig. § 337.]
    12. Witnesses (§ 350)—Cross-Examination —CONOLUSIVENESS OE ANSWERS.
    Where accused, testifying in his own behalf, was cross-examined to affect his credibility on a matter about which he had nbt been indicted, and the questions did not indicate facts justifying .an indictment, his answers could not be contradicted.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1149; Dec. Dig. § 350.]
    13. Witnesses (§ 337)—Impeachment—Ac-cused.
    Where accused, on trial for an assault with intent to rape, testified in his own behalf, it was error to show extraneous matters having no tendency to affect his credibility as a witness, but only to create a prejudice against Mm as being an immoral man.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1129-1132; Dec. Dig. § 337.]
    Appeal from District Court, Hunt County; R. D. Porter, Judge.
    John Campbell was convicted of crime, and he appeals.
    Reversed and remanded.
    Sam D. Stinson, for appellant.
    John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The Assistant Attorney General has filed a motion to dismiss the appeal because the recognizance is defective.

The recognizance does not state the amount of the punishment assessed against appellant as required by article 887, C. C. P. 1895. The recognizance being defective, the motion is sustained. See May v. State, 40 Tex. Cr. R. 196, 49 S. W. 402.

The appeal is dismissed.

On Motion for Rehearing.

HARPER, J.

. Appellant was indicted for assault with intent to rape, and was convicted of an aggravated assault and his punishment assessed at a fine of $250 and six months imprisonment in the county jail.

This case at the last term of this court was dismissed because of insufficient recognizance. Appellant within the time permitted by law filed a new recognizance, and this case has been pending since said date. The testimony for the state would show that on or about the 30th of April, 1909, appellant, while his wife was confined to her bed, instructed his stepdaughter, Lizzie Little, a 13 year old girl, to go to the smoke: house and get some molasses for dinner. She says he followed her in the smokehouse, closed the door, made indecent proposals to her, and attempted to pull up her dress; that he kept her in the smokehouse about half an hour, when those in the house became uneasy about the length of time she was staying, called her, and at last her half-brother came for her, when appellant opened the door and let her go. Her mother’s brother shortly thereafter came for her, and without the knowledge or consent of her stepfather (appellant) carried her away to his home. She is corroborated in some details by a lady staying in the house at the time.

Appellant denies, any improper conduct, or that he ever sought to rape his stepdaughter, and contends that his treatment of her had always been kind, and some of the neighbors testify that appellant treated his stepdaughter as well as he did his own children. There was a great deal of impeaching and corroborative testimony, but the above presents the issue in the case.

1. Bills of exception Nos. 1, 2, and 4 are not in the record; therefore the matters assigned on them as a basis cannot be considered.

2. In bill of .exception No. 3 complaint is made of the state being permitted to ask the prosecuting witness the question: “Did he say anything about giving him some?” The witness was but a child, and the record shows she was crying, and the state had in a measure to coax her to give testimony. Taking into consideration the age of the child, and the circumstances of the trial, we do not think the court erred in permitting the question to be asked, even though it is leading in its nature.

When a person is of immature years, and laboring under excitement, etc., leading questions may be permitted by the court, and this is a matter left largely in the discretion of the court trying the cause. Harris v. State, 37 Tex. Cr. R. 441, 36 S. W. 88.

3. The court did not err in not permitting the witnesses to state what Ephriam Poindexter had said to them on different occasions when neither the defendant nor prosecuting witness were present. Poindexter was' not a witness in the case, and neither the state nor defendant had sought to make him a witness, so far as the record discloses.

Neither was there any error in not permitting witnesses to state the contents of a letter, from Poindexter to appellant. The letter was the best evidence, and, in the absence of proof of its destruction or loss, contents thereof could not be proven by a witness who claimed to have read it. This also applies to the letter from Mrs. Poindexter as complained in bill No. 7. Before a witness who has read a letter will be permitted to testify as to its contents, some reason must be given for its nonproduction. So far as the record discloses, these letters were in the possession of defendant, and they would be the best evidence.

4. Complaint was made about the admissibility of a conversation had between prosecuting witness, Lizzie Little, and Mrs. T. D. Campbell, in which conversation she in. a few days after the occurrence had detailed to Mrs. Campbell the transaction in substance as she testified to on the trial of this case. The defendant had sought to impeach Lizzie Little by her mother in regard to this matter, and this rendered the testimony of Mrs. Campbell admissible. Kimball v. State, 37 Tex. Cr. R. 230, 39 S. W. 297, 66 Am. St. Rep. 799.

5. Complaint is made in bill of exception No. 14 that the court instructed the jury “that they would pay no attention to and wholly disregard any statement by counsel about any letter, except the letter of Mrs. Gould, as there was no other letter in evidence.” The court, in approving this bill, says defendant’s attorney had been discussing before the jury contents of letters not in evidence. It is proper for the court to limit the argument to the evidence adduced on the trial, and it is proper for him to so conduct the case as to keep from the jury all matters not admitted in evidence, and to instruct them not to consider such matters if counsel inadvertently or intentionally seeks to bring such matters to their attention.

6. Appellant also complains of the argument of counsel for the state, when he said: “Gentlemen of the jury, one of the best doctors in this county examined Mrs. John Campbell to-day and reported to this court that she was able to come to court and testify. Two officers of the court took her from her room and brought her to the court in a rocking chair, and paid the expenses of bringing and taking her back to the house.” The court, in approving this bill, says: “When this case was called for trial, defendant made a motion for continuance, setting out as one of the grounds of same that he expected to prove some very material facts by his wife, Mrs. John Campbell, and that she was unable to attend court on account of her physical condition. The motion was overruled, and during the trial of the case I sent a physician to the home where Mrs. Campbell was stopping to examine her and see whether she was able to be brought to court. He reported that she was not confined to her bed and was able to be brought to court. Whereupon I sent two deputy sheriffs for her and had her brought to the courthouse in a carriage. When she testified in the case, I had her taken home. One of the attorneys for the defendant in his argument criticised the officers .of the court very severely for having the woman brought to court, among other things saying, 'Defendant preferred to take his chances before a jury without the testimony of his wife rather than to drag her out of a sick bed to testify for him.’ ‘The officers of this court had gone to the woman’s sick bed and dragged her to the courtroom when they knew that she was unable to be brought out.’ ” When defendant’s counsel discusses matters outside of the record, they cannot be heard to complain when the court permits opposing counsel to reply. All of this was improper in the absence of any testimony before the jury as to Mrs. Campbell’s condition; but, the defendant having first referred to these extrinsic matters, he ought not now be permitted to complain when the objectionable remarks were in direct response to his criticisms.

In addition, no special charge was requested asking the court to instruct the jury not to consider such argument, and, in the absence of a requested instruction, we will not review the matter further, and hold it presents no error for which the case should be reversed. Levine v. State, 35 Tex. Cr. R. 649, 34 S. W. 969, and cases there cited.

7. There is a bill of exception in the record that presents a serious question, and one which has been discussed in a number of our decisions; and that is: When a defendant takes the stand to testify in his own behalf, upon what matters and to what extent may he be cross-examined on matters affecting his credibility as a witness?

It seems well settled by all of our decisions that he is subject to the same cross-examination as any other witness. Monticue v. State, 40 Tex. Cr. R. 531, 51 S. W. 236; Hutchins v. State, 33 Tex. Cr. R. 299, 26 S. W. 399, and “cases cited. And that he may be asked about being indicted or convicted of offenses involving moral turpitude or of the grade of felony, and be discredited and impeached by proof of conviction of such offenses, if recent. Hutchins v. State, 33 Tex. Cr. R. 299, 26 S. W. 399. But the question here presented is: Can he be cross-examined on a matter about which he has not been indicted, and the question does not indicate a state of affairs for which he could be indicted, for the purpose of affecting his credibility?

It is well settled by the decisions of this state that, if questioned about such matters, the state must accept the answer to such questions, and will not be permitted to impeach him. Brittan v. State, 36 Tex. Cr. R. 410, 37 S. W. 758, and authorities there cited.

In this case the state was permitted to ask the following questions on cross-examination, and the witness required to answer them, as shown in bill of exception No. 9: “Q. On one occasion recently, when you were drinking, didn’t you come up on the train with a young lady, and didn’t you introduce yourself to her as a young man, and didn’t you call on her that night? A. When did you say that was? Q. Some time in recent years. Is not that a fact? A. .How is your question? Q. You say you have a fondness for women when you are not drinking? A. I like ladies. I have a respect for ladies. Q. Now, when you get to drinking, don’t you have a special fondness for them? A. 1 can’t say that X have; I always try to treat ladies with courtesy wherever I meet them. Q. Always do? A. I try to. Q. Now, the question is this: Coming on the train with a young woman who was claiming to visit a family here in Greenville, and you introduced yourself as the Govern- or’s brother, as a single man, and didn’t you make a date to call on her that night, and did you not call on her that night? A.I met a young lady on the train — Ed Mc-Guffin and I. She requested— We were setting behind her, and she requested, if you gentlemen live in Greenville— We was coming up from Shreveport, Ed and I. I don’t know where she got on the train. We had been to- Shreveport, and we had been out in the smoker ’and walked back in the car where the lady was, and this lady we set down behind, this young lady, and when the train came into Greenville she turned and asked, ‘Do you gentlemen live in Green-ville?’ and Ed says, ‘We do,’ and she says, ‘Do you know Dr. Milner?’ and Ed says, ‘Tes, X do,’ and she' says, ‘Do you know where he lives?’ and we says, ‘Yes, if he has not moved to his new residence,* and I says, T will see if he has moved when we get off and secure a cab and send you out there,’ and she walked into the depot, and Ed says, T will run around there and see the cabman and learn whether or not he has moved out to the new residence.’ We went and secured a cab and put the young lady in the cab; and Ed and I went to the Beckham Hotel and went to bed. And the young lady in the meantime said that she came to see some relative of hers that was seriously sick, and the lady lived on -street, and said she was seriously sick, and they were expecting her to die, and she up and asked my name, and I just told her it, and the next night I had occasion to be in that part of town and just stopped and inquired and conversed with the young lady a little while. I never did tell her that I was not married.”

In the case of Carrol v. State, 32 Tex. Cr. R. 433, 24 S. W. 100 (40 Am. St. Rep. 786), this court says: “While the Code declares that one may impeach his own witness in any way except by proving his bad character (Code Criminal Procedure, art. 755), it is silent as to the methods by which one may attack the credibility of a witness offered by the opposite party. It simply refers us to the rules of evidence known to the common law for guidance. Code Crim. Proc. art. 725. Turning to the source, we find that of the various modes of impeaching a witness this alone has been the subject of much opposition and discussion; that is, whether a witness can be compelled to answer a question, degrading him, collateral to the main issue, but relevant to his credit. In other methods of impeachment, the question is as to the application of the rule. In this the existence of the rule is denied. It seems, however, to be conceded that, if the question is relevant to the main issue in the case, the witness upon cross-examination is bound to answer, however degrading it may be to him. It is where the evidence is not relevant to the issue, but only goes to affect his credit, that the authorities cannot be reconciled. 1 Best on Ev. 130; 1 Greenl. on Ev. § 459; Whart. Crim. Ev. (8th Ed.) 474. We may therefore follow the authorities whose reasoning appeals strongest to our judgment, and adopt that rule which tends to elucidate the truth, which is the object of all rules of evidence. Now, while it is true that the question ‘has never been solemnly settled,’ as stated by Mr. Greenleaf (1 Greenleaf on Evidence, § 459), yet eminent judges, at nisi prius trials, 'began at an early day to permit such questions to be asked, and compelled the witness to answer them. Whart. Crim. Ev. 474. Bord Eldon, in speaking of this practice, thus states the law in his day: ‘A party cannot be called upon to criminate himself; it used to be said a party could not be called on to discredit himself, but in modern times courts have permitted questions, to show from transactions not an issue, that the witnesses are of impeached character, and therefore not so credible.’ So that it would seem mat, though the olden autnorities were' against the practice (1 Phillips on Evidence, 289, 294), yet the current of authority soon changed in England and America. Indeed, in his digest of the Law of Evidence, Sir James Stephen states the rules of cross-examination as follows: ‘Where a witness is cross-examined, he may be asked any question which tends (1) to test his accuracy, veracity, or credibility, or (2) to shake his credit, by injuring his character. He may be compelled to answer any such question, however irrelevant to the facts1 in issue, and however disgraceful to himself, except where the answer might expose him to a criminal charge.’ Willson’s Crim. Stats. § 2511. This character of cross-examination is permitted upon the theory that, where a man’s life or liberty depends upon the testimony of another, it is of the highest importance that they whom the law makes the exclusive judges of the facts and the credibility of the witnesses should know how far the witness is to be trusted. They ought to know his surroundings and status, so as not to give to one belonging to the criminal class the same credit as he whose character is irreproachable. If, therefore, it should appear on cross-examination that the witness has a previous criminal experience, or spent a part of his life in jail (Real v. People, 42 N. Y. 270; Thompson on Trials, 458; 1 Greenleaf on Evidence, 455), or was convicted, or has suffered some infamous punishment, or.had been in jail on a criminal charge (1 Best on Evidence, 180), it would tend to shake or impair' his credit, and the jury should have such information. While it may seem hard to compel a witness to commit perjury or destroy his own standing before the court, it would seem absurd to place the feelings of a profligate witness in competition with the substantial rights of the parties in the case. But it is to be remembered, and all the authorities unite in the statement, that the examination must be kept within bounds by the court; that the question should only be permitted where the ends of justice clearly require it, and the inquiry relates to transactions comparatively recent, bearing directly on the present character of the witness, and is essential to the true estimation of his testimony by the jury. 1 Greenl. on Ev. § 459; Whart. Crim. Ev. §§ 474, 476; Taylor on Ev. §§ 1314, 1315. It should be the care of the trial judge to confine the interrogatory to matters coming within the said limitations, and promptly suppress all inquiry into matters not recent nor relevant to credit; otherwise the witness box would become a source of scandal and an offense. It is also to be observed that when a witness is asked a question which tends to disgrace him, and answers the question, the cross-examining party is, in general, bound by the answer, if collateral to the issue and only going to the credit of the witness. For to admit contradictory evidence would raise collateral and independent issues not relevant to the main question. 1 Greenl. on Ev. 455; 2 Phil. on Ev. 950; Best on Ev. 200.”

The evidence above shown to have been elicited, as we see it, could only go to prove that appellant was not a moral man, perhaps, a libertine, and thus create a prejudice in the minds of the jury against him. Courts, in admitting cross-examination of a witness for the purpose of affecting his credibility, should be careful to limit that examination to matters alone which would affect his credibility, and, when a defendant is on the stand as a witness, not permit a cross-examination on extraneous matters which do not affect his credibility as a witness, but instead have a tendency to only create a prejudice against him as being an immoral man. We think the court erred in permitting the state to cross-examine the witness on these matters and attempt to create the impression that he was, perhaps, a libertine. He was on trial for rape, and, while a libertine is an immoral man, yet it cannot be said that every one of them would- go to the extent of raping a female, or that he is unworthy of belief as a witness.

It is needless to discuss the motion for a continuance in view of the disposition of the case.

The judgment is reversed, and the cause is remanded.  