
    COLLINS v. STATE.
    (No. 9170.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.)
    I. Criminal law <&wkey;4!9, 420(1) — Admitting te&-timony as to recognizing defendant in jail as party seen in certain places by witnesses before alleged rape held not prejudicial error.
    Admission of testimony as to recognizing defendant,' while jn jail after alleged rape, as party whom witnesses testified . they saw at certain places before assault, held not prejudicial error, as bolstering up their testimony, which was not attacked by defendant, by hearsay testimony.'
    2. Criminal law c&wkey;4l9, 420(1), 448(6) — Officer’s testimony as to why he arrested defendant held inadmissible.
    Officer’s testimony that he arrested defendant “because he answered the description” of one “we had orders to pick np for the alleged offense” held inadmissible, as hearsay and opinion.
    .3. Witnesses <&wkey;>380(5) — State held not entitled to impeach witness, failing to identify defendant as guilty party, by prior contradictory statements.
    District .attorney could not impeach state’s witness, failing to identify defendant as guilty party, by witness’ affidavit and questions to him as to contradictory statements in district attorney’s office, where state was apprised of fact that he would not identify defendant by prior affidavit on former trial in support of defendant’s motion for new trial.
    Commissioners' Decision.
    Appeal from District Court, Fort Bend County; M. S. Munson, Judge.
    Dutlier Collins was convicted of rape, and appeals.
    Reversed and remanded.
    See, also, 97 Tex. Or. R. 310, 261 S..W. 588.
    Mathis, Heidingsfelder, Teague & Kahn, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted in the district court of Harris county for rape on one Myrtle Davis, and upon change of venue was tried and convicted in the district court of. Ft. Bend county, and his punishment assessed at 99 years in the penitentiary. This is the second appeal of this case to this coiirt; the first appeal being from a judg ment of conviction in 'the district court of Harris' county, in which the appellant was given the death penalty. The former-appeal will be found in Collins v. State, 95 Tex. Cr. R. 405, 254 S. W. 805. The facts stated in that opinion are sufficient for the discussion of the facts upon this appeal.

In bills of exceptions 4 and 9, the appellant complains of the action of the court in permitting the witnesses Monroe Sullivan and George Steinbach to testify in substance to having seen the appellant in jail after the alleged assault and recognized him as being the same party that the witness Sullivan had testified to having seen standing on the street corner, the place that prosecutrix alleged that he accosted her, just á short time prior to the time placed by the prosecutrix, and the witness Steinbach testifying that the party he recognized in jail was the same party that had been in his store the day of the alleged assault; said bills urging that said witnesses identifying the appellant while in jail, were hearsay acts and declarations, and out of the presence of the defendant, and prejudicial, and that both of said witnesses having previously testified to seeing the appellant at the places above mentioned, the court permitting this identification testimony in jail complained of was bolstering up the testimony of said witnesses without an attack being made thereon by appellant, and by hearsay testimony which was inadmissible and was prejudicial error. We are of the opinion that these objections are not well taken. The appellant cites us, among others, to the following cases: Fortune v. State, 96 Tex. Cr. R. 569, 259 S. W. 573; Jamail v. State (Tex. Cr. App.) 268 S. W. 473. We do not think these cases are in point, and believe the court was not in error in admitting this evidence.

In bill of exceptions No. 10, complaint is urged to the action of the court in permitting Officer Read to testify:

“I arrested the defendant because he answered the description of 'the negro we had orders to pick up for the alleged offense of rape upon a white girl, Miss Myrtle Davis.”

The objection urged to said testimony was that same was hearsay as to what his orders were, and was an opinion of the witness as to the orders giving a description of the alleged party committing .the rape, and highly prejudicial to the rights of the defendant. In support of this contention, the appellant’s attorneys cite us to the case of Mallory v. State, 37 Tex. Cr. R. 482, 36 S. W. '751, 66 Am. St. Rep. 808. Judge Davidson, in rendering the opinion in the Mallory Case, supra, wherein the state witness Durham was permitted to testify that he obtained the description of the defendant from Yost, Wisdon, Eisenlohr, and Stamm, to whom the defendant had passed certain alleged forged checks, and afterwards arrested therefor, use the following language:

“The defendant was not- presént when - the conversations occurred between said parties and the witness Durham. It was objected that this testimony was hearsay, and calculated also to injure the rights of the defendant before the jury, and served to strengthen the state’s testimony as to the identity of the defendant as the party who passed or uttered the forged checks upon said parties. We think .these objections are well taken. These parties who gave a description to Durham were witnesses in the case, and testified. Their testimony as to the description and identity of the defendant .was not attacked by showing that they had made contradictory statements in.regard to this matter, and it w,us not permissible to corroborate them as 1o their description of the defendant by the evidence of the witness Durham.”

We think that the court was in error in permitting this testimony.

In bill of exceptions No. 6, the appellant complains of the action of the court in permitting the district attorney, after placing the witness Ross Triana upon the witness stand in behalf of the state, to attempt to impeach him thereafter by introducing an affidavit made by said witness, showing alleged contradictory statements not in keeping with his testimony, made in the district attorney’s office. The bill discloses that said witness failed to identify the appellant while testifying for the state before the jury as being the same party that had intercourse with the prosecutrix, then the state, with said alleged affidavit, called said witness’ attention to same and interrogated him relative thereto, and as to whether or not he made said statements therein, and if they were true. The appellant raised the objection that the state was not authorized to impeach its own witness in said manner, and that said witness had not violated any rule authorizing such procedure, and the state was apprised of the fact that said witness would not testify favorably for the state as to such' identification of the defendant, and that said witness had made, prior to said affidavit, an affidavit in behalf of the defendant on the former trial, stating that he could not identify the defendant as being the same man that accosted and had intercourse with the prosecutrix, and in effect that he was not the same man, and the state was fully aware of said affidavit, it being attaches to said motion for new trial, and was not misled by any conduct of said witness. We think that the authorities cited by the appellant in suppoii of this contention, as follows: Scott v. State (Tex. Cr. App.) 20 S. W. 549; Ingram v. State, 78 Tex. Cr. R. 559, 182 S. W. 290; Hollingsworth v. State, 78 Tex. Cr. R. 489, 182 S. W. 482; Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194— announce the law correctly and in keeping with the contention of the appellant in this instance.

It is strenuously urged by the appellant in this case that the evidence is insufficient to warrant his conviction; but, in view of the disposition we have made of this case, we do not think it necessary at this time to discuss this contention.

For the errors above discussed, we are of the opinion that this case should be reversed and remanded; and it is accordingly so ordered.

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. 
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