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(273 S.W.) court has repeatedly held that you can in- , and the explanation thereof, and under the terrogate the defendant while a witness up- circumstances of this particular case, that on the stand as to other felonies charged the state was authorized to introduce eviagainst him for the purpose of impeaching dence of the general reputation of said witbis testimony and to affect his credibility. (ness for truth and veracity. In Branch's P. This court has also held that it is improper c. $ 184, it is stated: to go into the details of such cases, but in

"Either side is entitled to prove the general this particular instance we see no error from reputation for truth of a witness who has been the qualification made on the bill by the impeached, or sought to be impeached, by proof court, as it appears that said witness vol- of contradictory or partly contradictory stateunteered said information as to his convic-ments”-citing many cases, including Dixon v. tion and to having served said time in the State, 15_Tex. App. 272; Graham v. State, 57

Tex. Cr, R. 109, 123 S. W. 694; Myers v. State penitentiary.

(Tex, Cr. App.) 101 S. W. 1000; Dickson v. [3] The appellant complains of the action State, 66 Tex. Cr R. 270, 146 S. W. 916. of the court in permitting the state's counse) to ask the witness Beard, the witness Counsel for appellant complains of the acfor the defendant, on cross-examination, if tion of the court in permitting the district said witness did not testify on a former trial attorney in his closing argument to the jury of this case, and if he did not say that the to state: defendant was sick on November 20, when

"I want to know in all good conscience if the defendant was charged with selling liq- the time is coming in Lamar county, Tex., when uor to one Lillard Hill, and to the action 12 good white men like you will sit on the of the said attorney in reading the names jury and believe 3 or 4 black negroes in preferand the places to the said witness from said ence to one good white boy." indictments; said objection being that the

The qualification made to this bill by the jury might consider same as original evi- court states that counsel for the appellant dence of guilt. This testimony in effect was

in his argument to the jury stated: already in, as heretofore shown, relative to the defendant being indicted, and we fail to

"It is true in this case that the defendant is

a negro, and that his witnesses are also nesee any error in the action of the court in this particular. Furthermore, the charge of groes, but I would rather believe them than

the white boy, Clyde Lewis, any time and in the court limited the testimony to the other any manner. Just look at old black Tom Beard, alleged charges of crimes and conviction of a more truthful negro never lived; compare the defendant to impeachment purposes and him with Clyde Lewis, who is white only in to affecting the credibility of the defendant's color. * A year from now

you will testimony which should have removed all know which one is telling the truth about this doubt from the minds of the jury as to the transaction and you will find it to be these purpose for which such testimony was ad- negroes instead of Clyde Lewis.” mitted.

And several other similar statements in[4] Appellant complains of the action of cluded in the explanation of the court, and, the court, as shown by bill of exception No. in reply to that, the court states that the 4, in permitting the state's attorney to in- district attorney stated to the jury that it troduce witnesses showing the good reputa-) was their privilege to believe any witnesses tion of the prosecuting witness Clyde Lewis, in the case, whether black or white, but that because it is stated that the state could not he did not believe that 12 men like them in bolster up the testimony of said Lewis hy Lamar county would disregard the white proving his good reputation for truth and boy's testimony, as the defendant's counsel veracity. The court, in qualifying this bill, called him, and take the negroes' testimony states that the defendant's counsel, on cross- in preference, without some good reason, betexamination of said witness Lewis, who was a ter than the defendant's counsel had given boy 19 years of age, asked said witness about in his argument. his brother, Dock, and if he (said witness) We see no error committed in this particwas not a witness in his brother's case, and ular, and we think that the argument made if he had not been summoned in said case, by appellant's counsel authorized the reply and asked said witness about having been made by the attorney for the state. arrested by the officers himself for having After a careful examination of the record liquor in his possession, and if he hadn't in this case, we are of the opinion that the made a trade or offered a trade by the state defendant has had a fair trial, and no rethat, if he would tell where he got the whis- versible error is shown, and that the judgkv. they would let him go, which the wit- ment of the trial court should be affirmed, ness denied, and asked the witness relative and it is accordingly so ordered. to his father having been arrested for bootlegging, and gave the witness a severe cross PER CURIAM. The foregoing opinion of examination on alleged contradictory state- the Commission of Appeals has been examments he had made in testifying on a former ined by the judges of the Court of Criminal trial of this case.

We believe from the bill Appeals and approved by the court. 273 S.W.-55

On Motion for Rehearing.

mitted to testify that from their observations MORROW, P. J. An examination of the in appearance of testatrix, her actions or con,

they had discovered nothing out of the ordinary motion for rehearing leaves us of the opin- duct, as such matters related to her mental ion that on the original hearing the proper condition. disposition was made of the case.

We understand that the rule stated in 2. Evidence 478(1) – Rule of nonexpert's Walker's Case (Tex. Cr. App.) 72 S. W. 401, testimony as to mental condition, stated. was not transgressed. That case but exem One who has known testatrix intimately for plified the familiar rule that, when one is long time with full opportunity to observe her on trial for an offense, the proof of other appearance, action, and conduct may state, not offenses committed by him is not to be re- only things which to them would indicate ceived, unless brought within some of the change in her mental condition for the worse, exceptions to the rule excluding such testi- but, to show soundness of mind, that there was mony. The rule does not exclude, but, as

no change in her mental condition during his

acquaintance with her. announced by many of the decisions of this court, expressly sanctions the proof of other 3. Insane persons w2-How insanity and unoffenses of the grade of felony or involving soundness of mind shown by appearance and mòral turpitude upon cross-examination of

proof of acts and conduct, stated. the witness, whether the accused or not, for the purpose of discrediting his testimony. shown by appearance and proof of acts and

Insanity and unsoundness of mind may be See Branch's Ann. Tex. P. C., § 168, and conduct out of the ordinary, which, to one of many cases therein collated; also Lights v. ordinary intelligence, would indicate aboormal State, 21 Tex. App. 313, 17 S. W. 428. state of mind, insanity, or unsoundness of mind.

In the present case, the evidence of other offenses, both as to the appellant and his 4. Insane persons w2—How unsoundness of witnesses, was adduced upon cross-examina

mind proved, stated. tion. In the appellant's cross-examination To prove that one is of sound mind, it is of the witness Lewis, many misdeeds and necessary to show only that he is not known to self-contradictions were imputed to him; al- be gui of any act or conduct which would inso the commission of criminal acts including dicate to one of ordinary intelligence that his

mind is unsound. a charge of violating the prohibition laws. In receiving evidence supporting the witness

5. Evidence Om471 (2)-Permitting neighbors as to his good reputation for truth and ve

to testify that testatrix regarded children of racity, we are of the opinion that the learn

half-brother as her own and had mother's ed trial judge is sustained by the authorities. love for them held without error. See Coombes v. State, 17 Tex. App. 264; Farmer v. State, 35 Tex. Cr. R. 270, 33 S. long standing to testify that testatrix regarded

In will contest, permitting neighbors of W. 232; Luttrell v. State, 40 Tex. Cr. R. 659, children of her half-brother, as her own and 51 S. W. 930.

had a mother's love for them held, under facts [5] According to the bill of exceptions com- testified to by witnesses, without error. plaining of the argument of counsel, the question of the color of the witness was first 6. Wills Ow400—Error, if any, in explanation adverted to by the appellant's counsel. If

in connection with submission of will contest the remarks criticised are properly the sub

on special issue, held harmless. ject of complaint, they are excusable upon In view of pleadings and evidence in will the rule that they were invited. See Branch's contest, error, if any, in explanation, in subAnn. Tex, P. C. p. 205, and numerous cases mission of special issue as to mental capacity, there cited, including Baker v. State, 4 Tex. that will was being offered for probate by App. 229; Pierson v. State, 21 Tex. App. 60, proponent and contestants were opposing it on

grounds of mental incapacity of testatrix, held 17 S. W. 468.

harmless. The motion for rehearing is overruled.

7. Wills Saw 330(1)-Charge defining "sound mind” held sufficiently comprehensive.

Where will contest was submitted on sole BELL et al. v. BLACKWELL et al. issue of testatrix mental capacity, charge that (No. 8646.)

proponent had burden of proof to show she (Court of Civil Appeals of Texas. Galveston. pacity to know and understand what she was

was of "sound mind,” that is, that she had caApril 1, 1925. Rehearing Denied

doing, and the effect of her act at the time she May 7, 1925.)

executed instrument, and that if she had such 1. Evidence en 478(1)-Nonexpert witnesses capacity her mind was sound, held, sufficiently

properly permitted under facts to testify as comprehensive. to mental condition.

[Ed. Note,-For other definitions, see Words In will contest, nonexpert witnesses, who and Phrases, First and Second Series, Sound had long known testatrix, held properly per- | Mind and Memory.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(273 S.W.) 8. Appeal and error Om 1060(1)-Argument of erty which shall remain after a sale of a proponent's counsel misstating law as to men- sufficient amount thereof to pay her debts tal capacity to make will held not to require and other personal bequests made in her will. reversal.

The provisions of the fifteenth, sixteenth, In view of almost overwhelming evidence of and seventeenth paragraphs of the will are testatrix's mental capacity to make will, error

as follows: in overruling objection to argument of proponent's counsel that it was not necessary for

“15. It is my will that in the event of the her to comprehend nature and extent of estate death of my half-brother, W. A. Blackwell, or objects of her bounty and business she was Senior, before my death, then all of the propabout to transact held, not to require reversal. erty in this will bequeathed or devised to him,

shall pass to and vest in his heirs at law then Appeal from District Court, De Witt Coun- living in the same way his separate estate

would vest under the Texas statutes of descent ty; John M. Green, Judge.

and distribution, In the matter of the estate of Sarah Jane “16. My half-brother, W. A. Blackwell, SenBell. Application of W. A. Blackwell and ior, has managed my property and affairs for others for probate of will, contested by J. R. some forty years, to my advantage and profit, Bell and another.. Judgment for proponent, and without charge. It is my will that no sort and contestants appeal. Affirmed.

of accounting shall ever be required of him,

and that in the settlement of my estate all Richard Waldeck, of Cuero, W. T. Bagby, matters between us shall be considered and of Hallettsville, Fly & Ragsdale, of Victoria, taken as fully adjusted and settled and he shall and Dougherty & Dougherty, of Beeville, for not be held liable, or indebted or obligated to appellants.

me or my estate in any way, on any account. I John H. Bailey, H. W. Wallace, and Crain for me or in my name has been in the best of

kuow that every transaction he has undertaken & Hartman, all of Cuero, for appellees. faith and without reward, and it is my will that

he shall not be questioned in any way in regard LANE, J. Miss Sarah Jane Bell died on

to any transaction for me or in my behalf or

in the 13th day of November, 1922. She left

my name or any dealings between us, and he

is by this will fully acquitted from any and surviving her, as her sole heirs at law, J. R.

every obligation to me or my estate. Bell, a brother of the full blood, W. A. Bell,

"17. I name and appoint said W. A. Blackher nephew, a son of John Y. Bell, deceased, well, Senior, as the executor of this my will, a brother of the full blood, W. A. Blackwell, and direct that no bond or security shall be reSr., a brother of the half blood, and Mrs. quired of him as such, and it is my will that Myrtle Black, a niece. She left a will execut- no other action shall be had in the probate ed in manner and form as required by law, court in relation to the settlement of my estate by which she made the following bequests: than to probate and record this will and re(1) To the Hillside Cemetery Association, turn the inventory, appraisement and list of

claims as required by law." $100. (2) To her half-brother, W. A. Blackwell, 320 acres of land, a part of the D. M. On the 6th day of January, 1923, W. A. Stapp survey in De Witt county, 431 acres of Blackwell, Sr., the executor named in the land, a part of the Gardner survey in said will, filed an application in the county court county, two-fifths interest owned by her, in of De Witt county for the probate of said will. and to lots 5, 6, and 7 and eastern one-half of Such application was contested by J. R, and lot 4, block 75, in the city of Cuero, in De Witt W. A. Bell, upon the grounds: (1) That the county. (3) To Myrtle Black, her niece, a testatrix was of unsound mind at the time of daughter of her deceased brother, John Y. executing the will; (2) That the will was the Bell, and Cary Bell White, also a niece, a result of undue influence exercised over tesdaughter of her brother Jas. R. Bell, jointly tatrix by W. A. Blackwell, Sr.; (3) That the 22612 acres of land and a tract of 122 acres testatrix was under the insane delusion that of land. (4) To Edwin Blackwell, a son of W. A. Bell, generally known as “Al" Bell, W. A. Blackwell, Sr., an undivided one-half was dead. On hearing in the county court, interest in and to two tracts of land, one the will was admitted to probate, and the concontaining 610 acres, and the other 160 acres. test was carried by appeal to the district Also all of a 150-acre tract and her home in court of De Witt county. Upon hearing in the city of Cuero. (5) To her nephew W. A. said district court, the will was again adBlackwell, Jr., son of W. A. Blackwell, Sr., mitted to probate. Contestants J. R. and W. an undivided interest in two tracts of land, A. Bell have appealed to this court. one of 610 acres and the other of 160 acres. The appellants admit that the evidence ad(6) To Jane Bell White and her brother John mitted was amply suflicient to support the M. White, daughter and son, respectively, of finding of the jury that the testatrix was of her niece Cary Bell White, jointly, the sum sound mind at the time of the execution of of $500. (7) To Mrs. W. A. Blackwell, Sr., all the will, but they predicate their appeal on of her silverware, which she might leave in their contention that the court erred: First, her home at the time of her death. (8) To in permitting several witnesses to give their W. A. Blackwell, Sr., all the personal prop- opinion relative to the soundness or unsound

AmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

ness of the mind of the testatrix; second, to , street and in the city of Cuero on which he give their opinion as to the feeling the tes- and the testatrix had lived for 30 years; tatrix had for W. A. Blackwell, Sr., and his that he passed her house almost daily for sons, Edwin and W. A., Jr.; third, in giving many years, and had often had talks with an erroneous charge defining what would con- her, and had had many business transacstitute an unsound mind in such cases; tions with her; that he daily had conversafourth, in refusing to give to the jury thei tions with the testatrix, and testified, withrequested charge defining what constituted a out objection, that her mind was rational; sound mind in such cases; and, fifth, that the that she was very alert and quick; that judgment should be reversed because of cer- she was bright and emphatic. He also testitain argument made to the jury by counsel fied that he was a witness to her will; that for the proponent.

testatrix, in his presence, discussed with her Whether the will was executed in the man- attorney, who prepared the will, its conner and form as required by law, and wheth-tents; and that at that time her mind was er it was the result of undue influence exer- alert and quick. cised over the testatrix by W. A. Blackwell, Mrs. McClanahan testified that she had Sr., are questions not presented for our de- lived two blocks from the testatrix from termination by the appellants. We shall 1890 to the time of the death of testatrix; therefore make no further mention of such that she had visited the testatrix often; matters.

that she would probably see her every three By their first assignment, appellants insist weeks and sometimes oftener; that she was that the court erred in permitting Berthold at the home of the testatrix and saw her Schiwetz, over the objection of appellants, about three weeks before she died; that she to answer, “There was nothing," to the fol

never, on any of her visits observed any lowing question: "Please state if there was irrational conduct on the part of the testaanything out of the ordinary in the appear-trix; that at all times when she saw tesance of Miss Sarah Jane Bell, her action or tatrix, her mind seemed perfectly clear; that conduct, with reference to whether she was a she did not see anything that indicated in normal person and in possession of her men- the least that her mind was not clear and tal faculties or not." The objection being that she was not at herself; that from her that the question was leading and called for observations and her associations with testaa conclusion of one who had not been shown trix, she thought the mind of testatrix was an expert.

perfectly sound; that she never saw her And by their second assignment, they com- when her mind did not seem perfectly sound; plained of the action of the court in permit- that she never saw her when her mind was ting W. K. Breeden, Mrs. McClanahan, Mrs. anything but normal. Davidson, Mrs. Seeligson, C. A. Waldeck,

Mrs. Davidson testified practically the Mrs. Staerker, Mrs. Jones, Mrs. Breeden, Mrs. same as Mrs. McClanahan. Cocke, Mrs. Donohue, and 0. T. McAllister to

Mrs. Seeligson testified that she had lived testify, over their objection, that they had not in Cuero 40 years or more about two blocks upon any of their visits to Miss Sarah Jane from where Miss Sarah Jane Bell lived, that Bell observed in her conduct or conversation she visited Miss Bell often, that she visited anything which led them to believe that there her during the year of 1922, and that she was something wrong with her mind, or any conversed with her and observed her conthing out of the ordinary with reference to duct and demeanor and condition. She tesher mind; the objections urged to such tes- tified that from her association with the testimony being that the same was the conclu- tatrix, her observation of her, and her consion of the witnesses such as only an expert versations with her in the spring of 1922, witness could give.

the mind of Miss Sarah Jane Bell was the As the two assignments, 1 and 2, present same as ever as far as she could judge; that practically the same question, we shall con- it was sound; that the witness saw nothing sider them together.

out of the ordinary about the testatrix durIt is now insisted by appellants substan. ing any of her visits; that the testatrix had tially that the witnesses mentioned should

a very strong will power; and that witness have been confined in their answers to the statements of whether from their observa-ulties of testatrix. She also testified that

never noticed any change in the mental factions and conversations with testatrix they judged her to be of sound or unsound mind, Miss Bell loved Edwin Blackwell and W. A.

Blackwell, Jr., very dearly. and that they should not have been permit.

C. A. Waldeck testified that he had lived ted to go further and state that she was a normal person in possession of her normal in Cuero about 6 or 7 years, and that his faculties and that there was nothing so far home was separated from that of Miss Sarah as they observed out of the ordinary in her Jane Bell only by a fence; that he had appearance, her actions, or her conduct. known Miss Bell approximately 6 years; There is no merit in appellants' contentions. that during the 6 years he knew the testa

The witness Schiwetz testified that he was trix he would see her once or twice a week 55 years of age; that he had lived on the and at other times possibly not so often;

(273 S.W.) that during all that time on an average of was cordial; that she visited the testatris once a week he had frequent talks with tes- several times a year; that she visited her tatrix, and that from his knowledge of Miss in the year of 1922; that during this visit Bell, from the conversations he had with her, she and the testatrix discussed old pioneer and the different matters, in the opinion of days; that the testatrix spoke of Mr. W. A. the witness, the mind of the testatrix was Blackwell, Sr., with deep affection, and called sound; that he could not notice any mental him “Brother Willie"; that she told witness change in the testatrix during the 6 years that as a child W. A. Blackwell, Sr., had he knew her; that her mind was just as slept in her bed, and that now in her old age active the last time he saw her as it was the he was taking care of her and good to her; first time he saw her.

that from her observation of Miss Bell and W. K. Breeden testified that he was 64 her acquaintance with her, and the converyears of age; that he was engaged in the mer- sation she had with her, in her opinion Miss cantile business, and had been so engaged for Bell was in absolutely sound mind and that 35 years in the town of Cuero; that his home her mind was in this condition in March, was just across the street from the home of | 1922; that witness saw no mental change Miss Sarah Jane Bell; that he had lived at in the condition of testatrix from October, that place for 43 years; that he had known 1921, to that in March, 1922. Miss Bell for 30 years; that they were in Mrs. Cocke testified substantially to the timate neighbors; that he visited the testa- same facts as did the witness above mentrix during the year of 1922; that the mentioned. tal condition of testatrix was perfectly good

Mrs. Donahue testified that she had known and sound in his judgment; that on his last Miss Bell, the testatrix, all her life; that visit to the testatrix, which was in the sum- she knew her some 30 years; that she had mer of 1922, a few months before her death, visited her many times, and in 1902 witness she talked to him about various and sundry went to live in the home of Miss Bell and subjects; that on that occasion he observed lived there for two years, and she felt tonothing out of the ordinary in regard to the wards Miss Bell as thoug Miss Bell were mental condition of testatrix; that she was her own aunt; that after she removed from as natural as ever; that mentally she was the home of Miss Bell, she had occasion to as bright as she had ever been; that she was see her many times, the last time in July, of a very resolute character and a woman 1921. She testified that she and Miss Bell of strong convictions. He also testified that had conversed on different things; that from he visited Miss Bell in 1914, at the time her observation of Miss Bell in July, 1921, Viss Bell executed a formal will; that Miss and from her conversations with her and Bell's mental condition was always, in his knowledge of her, it was her opinion that judgment, excellent, absolutely sound.

the mind of the testatrix was absolutely Mrs. Staerker testified that she lived in sound; that there was nothing in the conCuero, and had lived there for 50 years; duct, attitude, or conversation that made witthat she had known the testatrix for 45 years ness think that her mind was not natural or or more; that she and the testatrix were

was unsound; that there was nothing on very intimate; that they had visited one any of the visits out of the ordinary in the another frequently; that she visited Miss (conversation and conduct of the testatrix inBell

, the testatrix, in 1922; that at this time dicating that she was of unsound mind; she was contemplating an early trip to Ger- that testatrix was a very strong-willed permany, and on that occasion she and the tes- son ; that she knew her own mind absolutetatrix discussed many subjects; that testa- ly and what she wanted to do; that she trix expressed regret that witness would be had a very deep love for W. A. Blackwell, gone on her trip so long; that from her ob- | Sr., and loved Edwin Blackwell like a son ; servation of Miss Sarah Jane Bell and her that she also loved W. A. Blackwell, Jr., like conversations with her, there was never such a son; that she helped to bring the boys up; a thought entered her mind that Miss Bell that she had been very much hurt with Jim could be classed as of unsound mind; that Bell, Sr. (contestant), for many years. she was as sane as she was; that when 0. T. McAllister testified he had lived in she saw her in May, 1922, her mind was in Cuero since 1894 ; that he was manager of absolutely the same condition as at all times the Electric Light Company; that he saw before; that she seemed quite as natural to Miss Bell three or four months before her her as she ever was; that on said last-men- death; that he had business with her; that tioned visit she noticed absolutely no differ- he had conversed with ber about different ence in the mental condition of Miss Bell matters; that he saw her about three months as compared to what it had been for many before she died; that, in his opinion, the years,

mind of the testatrix was sound; that there Mrs. Jones testified that she had known was nothing that he could call to his mind Miss Sarah Jane Bell practically all her that was in any way irrational. life; that she played at Miss Bell's home There were many other witnesses who tesas a child; that the intimacy between them tified to practically the same facts as did

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