
    HIRSCHBERG v. STATE.
    No. 13166.
    Court of Criminal Appeals of Texas.
    March 12, 1930.
    State’s Rehearing Granted Oct. 15, 1930.
    On State’s Rehearing Oct. 15, 1930.
    Appellant’s Rehearing Denied Feb. 18, 1931.
    C. E. Smith, of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., of Houston, and A. A. Dawson, State’s Atty., of Canton, for the State.
   . MARTIN, J.

Offense, robbery by assault; penalty, thirty-five years in the penitentiary.

The pay roll of the Hewitt Construction Company, amounting to about $7,000, was forcibly taken from one of its employees as he approached the Lamar Hotel building, where construction work by his company was going on. The employee was knocked down by a blow on the back of the neck and the money taken from him. The identity of the accused as the perpetrator of this crime was a closely contested issue on the trial. Appellant’s defense was an alibi. Among those who positively, identified appellant as having committed the robbery was one La Bleu, who at the time was working for the Hewitt Construction Company and whose testimony will be discussed below.

Several ponderous bills of exception appear in the record. Some of these contain a greater portion of the evidence produced at the trial and much irrelevant matter which tends to obscure rather than clarify the point attempted to be presented. One of them presents as error the action of the trial court in refusing to permit the appellant to impeach the state’s witness La Bleu, whose testimony was reproduced at the trial, he having died since testifying at a former trial of this ease. The state objected to the impeaching testimony because it was hearsay and no proper predicate had been proven for its admission. La Bleu gave cogent testimony as to appellant’s identity. He claimed to have been within a few feet of where the robbery took place. A predicate was laid for his impeachment at a former trial, which was reproduced by appellant as part of tbe same testimony given by bim and offered by tbe state. He answered then that be did not know John Bowers, did not talk to bim witbin two or •three minutes after tbe robbery, and did not tell bim that tbe man wbo committed it was a tall man in a blue suit of clothes with a dark bat on. Appellant offered Bowers, a newspaper man, as a witness, wbo would bave testified, if be bad been permitted to do so, that La Bleu bad in fact told bim tbe facts denied by bim as above set out and that sucb conversation occurred at tbe scene of tbe crime a few minutes after it happened. Appellant was shown to be a very small man (about five feet tall), and tbe state’s testimony tended to show be wore a white hat and blue suit at the scene of tbe crime. Other bills appear to present a kindred question and one of them apparently attempts to present also tbe point of tbe court’s refusal to permit impeachment of La Bleu by proof of his bad reputation for truth and veracity. In view of the disposition we make of this case, we will discuss generally what we understand to be tbe rule governing a matter of this kind, leaving tbe trial court to make sucb application of it as tbe facts warrant on another trial.

Bill No. 4, first mentioned above, is regarded under tbe facts of this case as showing proof of proper predicate for the impeachment of tbe witness La Bleu. In view of tbe issue of appellant’s identity, there would seem to be no doubt that tbe offered testimony of Bowers tended to weaken tbe effect of La Bleu’s testimony. We think tbe existence of the rule will be conceded which permits impeachment of a deceased witness by proof of statements inconsistent with those of bis produced by tbe state where a proper predicate has been laid for their admission. It has been many times held that a deceased witness may be so impeached without such predicate where there was no opportunity for proof of same, as in dying declarations. Lyles v. State, 64 Tex. Cr. R. 621, 142 S. W. 592; Branch’s P. C., § 1S6S. Or where tbe witness made tbe alleged inconsistent statements subsequent to testimony given on examining trial and reproduced by tbe state. Hamblin v. State, 34 Tex. Cr. R. 368, 30 S. W. 1075. See especially notes to Liddell v. State of Oklahoma, 16 A. L. R-. 405, where tbe subject is discussed and authorities collated. Judge Davidson discussing this said:

“Tbe state having introduced the evidence of the deceased witness, it was not necessary for appellant to lay the usual predicate for the introduction of impeaching testimony. It was impossible to do so. ⅜ * * The life and liberty of tbe citizen is worth more than the supposed fairness or unfairness of the treatment of a witness. To our minds the doctrine is too harsh for toleration that the life of the accused may be taken on such evidence, and yet he be denied the right to impeach the veracity of the witness wbo gives sucb testimony.” Hamblin v. State, 34 Tex. Cr. R. 384, 385, 30 S. W. 1075.

Contrary authority exists based upon the reasoning that no predicate was ever laid and in justice to the witness this should be done. The rule in Texas, as well as tbe great weight of authority elsewhere, however, is as stated by Judge Davidson above. Those, authorities favoring the rule which permits tbe introduction of impeaching testimony without tbe usual proof of predicate proceed upon the reasoning that since no opportunity was ever afforded for laying a predicate, the law will not require the impossible. See notes to Liddell v. State, 16 A. L. R. 405. In the absence of facts which support this reasoning, tbe rule in our opinion ceases to exist. This would seem logically to follow as the converse of the reasoning given in support of the rule, which admits impeachment without proof of a predicate. Therefore we think where a witness’ testimony has been reproduced and the party injuriously affected thereby desires to impeach such witness by showing that he had made contradictory statements, of which the party had knowledge when the witness testified, and then neglected to lay the proper predicate for impeachment, he will be precluded from using the impeaching evidence. However, if the contradictory statements were made by the dead or absent witness subsequent to the time he gave his evidence, which is reproduced, or, although the contradictory statements may have been made prior to the giving of such evidence, if knowledge of such contradictory statements did not come to the party until after the witness testified, such impeaching evidence may be received without a predicate having been laid. This exact question was not discussed by the court in the case of Mitchell v. State, 87 Tex. Cr. R. 530, 222 S. W. 983, 984, and the broad rule there stated is to be interpreted in the light of what is here said.

We are further of the opinion that proof that witness La Bleu bore a bad reputation for truth and veracity would be admissible. We see no reason for a different rule in this matter from that which would obtain if the witness were living. Carter v. State, 191 Ala. 3, 67 So. 981; Lester v. State, 37 Fla. 382, 20 So. 232; 1 Criminal Procedure (2d Ed.) par. 1209, by Mr. Bishop. It follows that we think the court erred in rejecting the testimony of witness Bowers. , The above, discussion is deemed a sufficient guidance fpr the trial court in governing the admissibility of other testimony which may be offered on another trial.

Other questions presented are deemed to be without merit, but for the error above dis-. cussed, the judgment is reversed and cause remanded.

PER CURIAM.

The foregoing opinion of tlie Commission of Appeals has been examined by tbe judges of tlie Court of Criminal Appeals and approved by the court. -

On State’s Motion for Rehearing.

MARTIN, J.

The state has filed a motion for rehearing, not questioning any rule of law announced in our original opinion herein, but vigorously contending that bill of exception No. 4, upon which we based our reversal, was insufficient to present the question discussed and decided. The bill as heretofore intimated has been obscured by vague and irrelevant statements and the ponderous recital of verbatim extracts from the statement of facts which appear entirely immaterial.

The state contends that the bill is sufficient to show that the jury retired and in its absence appellant had read to the court a part of the former testimony of the deceased witness La Bleu as a predicate for his impeachment; that this was followed by placing the witness Bowers on the stand and having him testify to certain statements in contradiction of the statements of La Bleu, all of which happened before the. court in the jury’s absence; that the state objected to the testimony of Bowers. because the same was hearsay and “no testimony was before the jury to form a basis to impeach La Bleu”; that the court sustained these objections, to which the defendant excepted. A careful reconsideration of the bill convinces us that its proper construction is as contended by the state, that is, that the appellant was put upon notice that the state’s objection was that he had not proven before the jury a proper predicate. The bill further certifies that no such predicate was offered before the jury. Obviously the witness could not be impeached without laying the proper predicate before the jury, and this not having been done, or attempted, no error is shown therein. Perea v. State, 88 Tex. Cr. R. 382, 227 S. W. 305.

The refusal of a subsequent application for a continuance is made the subject of bill of exception No. 1. The absent testimony related to proof of statements allegedly in contradiction to the testimony of state’s witness La Bleu, who is mentioned above. A motion to continue for impeaching testimony will ordinarily be refused. Branch’s P. C. § 324; Rodgers v. State, 36 Tex. Cr. R. 563, 38 S. W. 184; McCuen v. State, 75 Tex. Cr. R. 108, 170 S. W. 738. In addition, this bill is fatally defective in failing to show either the materiality of this testimony or such facts as would make it admissible under the rules already laid down for the impeachment of a deceased witness. If appellant with full knowledge of this testimony failed to lay a predicate for its introduction when La Bleu was1 on the witness stand at a former trial, he could not thereafter use his alleged impeach--ing testimony. Authorities cited in original opinion. The existence of such facts as would render this testimony admissible should have been alleged in appellant’s motion for continuance.

Finding no error in the record properly presented for review, the state’s motion for rehearing is granted, and the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved, by the court.

On Appellant’s Motion for Rehearing.

HAWKINS, X

We do not care to again review bill of exception No. 4. It had our most careful attention upon consideration of the state’s motion for rehearing. In appellant’s motion for rehearing he asks that we again give consideration to bills of exception Nos. 2 and 3. In appellant’s reply to'the state’s motion for rehearing, which reply was filed on March 29, 1930, there is an admission that bill of exception No. 2 shows an attempt to impeach La Bleu without any predicate being laid. This, we take it, eliminates said bill.

Bill of exception No. 3 first contains the indictment against appellant. We fail to see the necessity for this. The next two pages contain the state’s reproduced testimony of La Bleu, who had died since testifying on the former 'trial. After his evidence was read, appellant’s attorney said: “In connection with the testimony of Mr. J. B. La Bleu just read I want to state that I have some impeaching witnesses who are not here. When it comes our turn we want to offer some testimony to impeach him.” To which the court remarked: “We will pass on that when we get to it.” There is then set out in the bill sixteen pages of testimony, some of which' was offered by the state and some by appellant. We have been unable to see the necessity of thus cumbering the bill. Finally the bill does recite that appellant placed on the stand the witness Mouser; that the jury was withdrawn at the request of the state, and, in the absence of the jury, Mouser testified about a conversation claimed to have occurred-between him and La Bleu, and between La Bleu and another party, and also testified, that La Bleu’s general reputation for truth and veracity was bad. The conversations: that Mouser testified about occurred subse--quently to the other trials of the ease. The-testimony just mentioned given by Mouser was objected to by the state on the ground; that they could not see how it could impeach the dead man, which was La Bleu. If the court ever made any ruling upon the objection interposed by the state, the bill fails to show it. It does recite that appellant excepted to the ruling of the court, and the bill concludes with a certificate of the judge that all the testimony of Mouser was given in the absence of the jury. It is nowhere stated in the bill that evidence was ever offered in the presence of the jury, either to the effect that La Bleu’s general reputation for truth and veracity was bad, or that Houser’s testimony which would have tended to impeach La Bleu upon the question of the identity of appellant was ever offered in the presence of the jury. The bill fails to show that the court ever ruled upon the state’s objection at all, or intimated in any way that he would not permit the evidence to go before the jury. In this state of the record no error is disclosed by this bill of exception.

Appellant’s motion for rehearing is overruled.  