
    Edward L. HUTSON, Appellant, v. The STATE of Texas, Appellee.
    No. 28243.
    Court of Criminal Appeals of Texas.
    June 6, 1956.
    Rehearing Denied Nov. 14, 1956.
    
      Paul Donald, Joe H. Cleveland, Bowie,, for .'appellant. . . . ;
    Leon B. Douglas, State’s Atty., Austin,-' for the State.
   DICE, Commissioner’..

The conviction is' for driving a motor ve- ■ hide' upon a 'public highway while intoxicated; the punishment,’ three days in-jail and a-fine'of $50. • ’■

The state’s evidence shows that the appellant, while driving an automobile upon a public highway in Montague County, was stopped and arrested by State Highway Patrolmen E. R, Moore an'd Jerry Smith;

Both patrolmen testified that, before stopping the appellant, they observed the car weaving on the road, -on and off the shoulder, and, after they had stopped the^appellant, they found a pint bottle of whiskey almost empty in the car. They further testified that the-'appellant’s-eyes.were'>‘j‘red and blood-shot,”..his.speech was slurred, he staggered when he walked, and testified that both he'afid'fiis brother, who was an-occupant in the car, were drunk.

' As a witness in his own-behalf,'appellant denied that he was intoxicated and testified-that he- had not-drunk any beer ór whiskey-before his arrest. He-testified'that- he had-5 taken two- pills to stay awake- prior' to the-' time he'was arrested.

J. R. Fenoglio, the. jailer of Montague County, upon being called'as a witness by the appellant, testified-that he .ebs^nv^ appellant when he was placed in jail by the patrolmen; that he did not smell whiskey on his breath; and that he" wouldn’t say that the - appellant'wás drunk at that-time,'';.

Sheriff J. T. Lindsey, upon being called as a. witness by the appellant, .testified that, he observed the appellant when hp.wás plac-. ed in jail • and, in .answer to a question'ifj.in his opinion, the appellant was'drunk,at the", time, stated: “Well, I wouldn’t say what was the matter with him. He- was.drunkj or.doped.or something. He acted .more, like lie was doped ’than’he'did drunk.”

: We shall discuss.the-contentions'.relied, upon By the appellant in his-brief' and oral! argument. . . ■ C -.: . ;

Appellant first insists that'the'court erred' in denying hi.m.the-right to ,prep.arp..his-motion for continuance before .proceeding to trial and-in- requiring that the. same..be .dictated without, being reduced, to .writing, before being acted upon by the court. „ .

The record reflects that the.motio.n for continuance was dictated upon agreement that it' might be transcribed, signed, sworn to, and filed "without at this time reducing the same to writing and having the same sworn to.”

The record does not support the contention in appellant’s brief to the effect ■that he was compelled to dictate the motion and denied the right to prepare the same in writing, and .therefore such contention is overruled.

Appellant next insists that the court erred in overruling his first application for a continuance based upon the absence of three witnesses.

The motion alleged that the- witnesses, W. G. ITutson, Mrs. Lucille Hutson, and Mrs. .Mae Riley, .were under process and were in.'attendance upon, court on December 14, 1955, when .the court announced that the case would be heard and tried on December 16, 1955, but that they had failed to appear when their names were called on December 16."

The application did not state the residence of the witnesses nor does the record show that appellant applied for an 'attachment for said witnesses. An application for continuance based upon the absence of a witness must state the residence of the witness and the time when he left the c'qunty'of his residence, if temporarily absent therefrom. Mills v. State, 83 Tex. Cr.R. 515, 204 S.W. 642. Upon the nonattendance of a witness under subpoena, the failure to have an' attachment issued constitutes .lack of diligence. Morse v. State, 85 Tex.Cr.R. 83, 210 S.W. 965.

■Under the record, no reversible error is shdwn.

Appellant objected to certain oral instructions given the jury by the court immediately after they had been selected and sworn on the grounds that such instructions were in violation of the rule providing that the charge shall be given after the testimony has been concluded and be presented to counsel for examination.

, The oral instructions given the jury before any evidence was adduced were of an admonitory nature and related to the conduct expected of jurors during the trial and at recess while they were separated. We .find nothing of a prejudicial nature in the instructions and know of no rule of law which was violated by the trial judge in giving these instructions to the jury prior ■to the time for the delivery of the court’s charge in writing.

Appellant next insists that the court erred in permitting the state, for the purpose of impeaching the appellant’s witness, Sheriff -J. T. Lindsey, to introduce in evidence and to play before the jury a portion of a recording of a conversation in the county attorney’s office between- the sheriff, the county attorney, and the two highway patrolmen who arrested the appellant.

The record reflects that, after the sheriff had testified, on direct examination, that he.wouldn’t say the appellant was drunk but that “He was drunk or doped or something.,” on' cross-examination he denied that ■he had told the county attorney, in answer 'to a question, “Would you say Mr. Hutson was' drunk?,”, that he answered, “I damn •sure would.”

The record' shows that, after the sheriff denied making such statement, the county attorney 'produced a recording of the conversation, and, after identifying the sheriff’s voice therein, over appellant’s objection, a portion of the recording was played before the 'jury, which contained the question by the county attorney and answer by the sheriff which he had denied making.

Appellant objected to the introduction in evidence of the record of the conversation on the ground “it is not a recognized manner or method of impeaching a witness.,” .“It was made in the absence of the defendant, truly ex parte and most prejudicial and inflammatory.,” and for the further reason that it was inadmissible under the theory of wire tapping which is condemned by the Federal Government.

We 'find no merit in appellant’s contention that the recording of the sheriff’s conversation was inadmissible under the theory of wire tapping. The wire tapping cases arise under the Federal Communications Act, Title 47, U.S.C.A. § 605, which relates to communications by wire and radio. Tlie recording' of the sheriff’s conversation in' the county attorney’s office was not the interception of a communication by wire or radio but merely-'the recording of his . personal. conversation with the county ■attorney.

. In his. brief, appellant contends that .the .recording o.f .the conversation- was inadmissible to impeach the sheriff because no proper predicate had. been laid. Appellant is in no position to urge such contention as no objection was made to the evidence on that ground.

, Appellant also in his brief contends that .error is shown because the record played •before the jury contains other statements by .the • sheriff- which were damaging and prejudicial, to. him. Although the record played' before the jury contained other statements'.by the sheriff, appellant, did not specifically object to such portions and .therefore is in no position to here complain.

We think .the recording of the conversation was admissible for the purpose of impeaching the sheriff’s testimony by showing a prior inconsistent statement which he had made as to his opinion of appellant’s intoxication.

Appellant next insists that the court erred in assessing a fine against his counsel during jury argument. Such complaint is attempted to be shown by a transcript of a portion of the proceedings attached to the motion for new trial as an exhibit. There is no bill of exception and the facts are not certified by the trial judge; hence no error is shown.

Appellant’s contention that the trial court was shown to be biased and prejudiced against appellant and erred in refusing to recuse himself is overruled.

Finding the evidence sufficient to support the conviction and no reversible error appearing in the record, the judgment of conviction is affirmed.

Opinion approved by the Court.

On Appellant’s Motion for Rehearing

WOODLEY, Judge.

Counsel for appellant again urges that it wás error to permit the “attempted impeachment” of the testimony of the sheriff, a defense witness, with a recording of .a .conversation between the sheriff and the county attorney- made without the knowl•edge of the sheriff.

. Testifying in behalf of appellant, the sheriff answered in the affirmative when asked if in his opinion appellant acted more like, one who had been using barbiturates than, a man who was intoxicated. He further testified upon direct examination by appellant’s counsel that he had talked to the county attorney about a week or so before the trial about the case and his testimony, and was asked and answered:

“Q. And you informed him then that your testimony would be that this man was not drunk, is- that correct?
A. I didn’t tell him he wasn’t drunk. I said he acted more like a doped man than he did a drunk man. I believe that is the words I used.
“Q. And you were called here as a witness by this defendant? A. That’s right.”

With this testimony the direct examination was concluded, and the cross-examination began with the following testimony:

“Q. Didn’t you tell me, Mr. Lindsey, that—I believe my question was ‘would you say Mr. Hutson was drunk,’ and I believe you answered, T damn sure would.’ A. No.
“Q. You didn’t answer that? A, No, I didn’t.
“Q. You definitely state that you never did answer that way ? A. I sure do.
“Q. Did you tell this defense attorney, Paul Donald, and Joe Cleveland, that the defendant was drunk? A. I, said he was drunk or doped. I didn’t-say he was definitely drunk. I said he. was drunk or doped, and he acted more like a doped man than he did a drunk man.
“Q. But you didn’t tell me that he . . was damn sure drunk? A. No, I said he was drunk’or doped.
“Q. Mr. Lindsey, would you recog- ■ nize your own voice if you heard it played over the machine there? A. I don’t know whether I would or not.”

Objection was offered and, the jury being retired, the recording was played. The County Attorney then testified and identified the voice of the sheriff.

Over objection, a portion of the recording was played before the jury, being offered by the State and admitted for the purpose of impeaching the testimony of the sheriff.

' If we understand appellant’s contention it is that to admit such a recording would deprive the defendant of his right to be confronted with and to cross-examine the witnesses against him.

The County Attorney testified that while he was talking to a Highway Patrolman in his office the sheriff came in; that the “record was running” and he left it on to see that no testimony was changed and “that is what happened”; that the record was made while they were sitting there. He also testified “that is the sheriff’s voice” and testified that the record had been in his possession since that time and “is true and correct and has not been changed.”

Two Texas Highway Patrolmen were also present at the time of the recorded conversation, according to the testimony-of-the County Attorney.

Upon this testimony the court ruled that the portions of the recording which were at variance .with the testimony of the .witness on the present trial would be admitted.

Where the witness denies- or testifies that he does not remember making a. prior inconsistent statement, the ■ adverse, party may prove that he did make such statement. McCormick & Ray, Texas Law of Evidence, 2d Ed., p. 543, Sec. 695.

The rule applies to oral as well as written inconsistent statements. Foster v. State, 111 Tex.Cr.R.278, 12 S.W.2d 574; McCormick & Ray, Texas Law of Evidence, 2d Ed., p. 544, Sec. 696.

■. The rule in other jurisdictions appears to-be that not only the testimony.of the wit--, nesses but original, transcriptions, obtained-b-y .the use of the dictagraph are admissible, upon proper authentication. 20 Am.Jur,. 249, Sec. 258.

There would be no more reason for 'exclusion of the mechanically recorded conversation than there would be for excluding-the testimony of human witnesses- who. heard the conversation. United States v. Schanerman,. 3 Cir., 150 F.2d 941, 944.

; A wire recording only partly audible has been held admissible in the discretion of the court, where sufficiently audible to corrobo-' rate the testimony of a witness who over-' heard the recorded conversation. State v. Slater, 36 Wash.2d 357, 218 P.2d 329.

Appellant exercised his right to cross-examine the County Attorney. He did not question the accuracy of the recording after hearing it played.

We remain convinced that the trial court did not err in admitting the recording of the prior inconsistent statement of the sheriff for. impeachment purposes.

Appellant’s motion for rehearing is overruled.

On Appellant’s Motion for Rehearing

DAVIDSON, Judge

(dissenting)’.

More constitutional guarantees go here.

Under our Bill of Rights every person-accused of crime is entitled to be confronted-by the witnesses against him, Art. 1, Sec. 10, Const., Vernon’s Ann.St. The Sixth Amendment to the Federal Constitution carries the same guarantee.

Under the opinion of my brethren, those guarantees are no longer- in force or effect in this state.

Here, .we have the mechanical recording used as-a witness in the case. It was- that mechanical device.that gave-testimony as a witness in the case. It was that mechanical-device that testified it heard a witness, the sheriff,- make certain statements which -the state utilized'to'contradict and-impeach the-witness in his sworn testimony; The state-' ments so made were not- in appellant’s presence. .. .

Such testimony came from no witness who was-duly sworn; as such, in-the case. The .appellant.was not accorded an opportunity to ■ cross-examine- the witness that-gave the -testimony used against hirm

- We are not here dealing with the testimony of living witnesses' who”"gave their' testimony, under, the pain ■ and penalty of perjury, as to what they heard the sheriff-say in their presence .or while in the office of, the county attorney.

In Kemper v. State, 63 Tex.Cr.R. 1, 138 S.W. 1025,. 1038, we said:

“‘The constitutional• provision that the accused shall be, confronted, with the witnesses against him means that the witnesses on the part of the state shall he personally present when the accused is'on trial, or that they shall he examined in his presence and he subject, to cross-examination by him.’”

Also, in Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574, 579, we cited, with approval, Salinger v. United States, 272 . U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398, in stating that “The right of confrontation is-a right granted by the Constitution to preserve the common law right and not to. broaden it or disturb its exceptions.”

We also said in the Garcia.case:

“It is generally agreed that the process of confrontation has two purposes. The main and essential one is to secure” the opportunity of cross-examination.””

In connection with the proposition that the testimony by the machine denied;the right of cross-examination, I am impressed with'what the "Supreme Court of Kansas said upon that "question in State, v. Lowry, 163 Kan. 622, 185 P.2d 147,150, in holding testimony of!a lie" detector inadmissible:

“The [lie. detector] operator, appear-, ing, as a witness to report and .interpret the results of the test, might be questioned-ás-to his'qualificationsj-ex-' perience, his methods, and -on similar matters,'-and that is about all. But’-the ’ machine itself — conceding the compara-tivply. high percentage record as to accuracy and reliability claimed.for. it — .. escapes all. cross-examination.’-’ v ¡ ."

If such be true as to the lié dctector; howl muUi more so would the recording machine" be.exempt.from and .escape-cross-examination!. . .

- If the-state can,-as it did here; set’á me-' chanical -récordi’ng device in ’the'witness’ chair in the courtroom--and“have'¡¿'testify as a witness in-the case,-bef-ore and-to the jury, there is nothing to prevent it, from.-; having witnesses record their testimony -up- ; on a mechanical device and, upon the trial-, of the case, have that mechanical device - testify to such statement — all without con-, fronting .the accused with the witnesses, against him or giving him the opportunity to cross-examine those witnesses as to-, their., testimony.

To this destruction of the' constitutional guarantees mentioned, I can'but enter my solemn protest, which I respectfully do.  