58 S.W. 131 | Tex. Crim. App. | 1900
Lead Opinion
Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; and he prosecutes this appeal.
Appellant was jointly indicted with one Tom Sharp for the theft of the yearling in question. On the trial appellant filed his affidavit under article 707, Code of Criminal Procedure, for a severance, claiming there was not sufficient evidence against his codefendant, Sharp, to secure his conviction; and that he desired him tried first, for the purpose of securing his evidence. The district attorney objected to said motion for severance, stating that the State would use Sharp as a witness, and defendant could cross-examine him; if the State should not use said Sharp as a witness, the defendant would be permitted to use him. On this statement of the district attorney the court refused to put Sharp on trial first, but put appellant on trial, without at the time dismissing as to Sharp. Afterwards, and during the trial, the State closed its testimony without putting Sharp on the stand, or dismissing the case as to him. Appellant then proposed to put Sharp on the stand as a witness on his behalf, and the district attorney dismissed the case as to him, and he was sworn and testified. The court, in explaining this bill, says, "The State had the right to dismiss as to Sharp under the law, and there was no injury to defendant, Brown." There are other bills of exception involving this matter that had as well be stated here, as all of them together bring in review the legality of the action of the court overruling appellant's motion to sever. When the witness Sharp was on the stand, defendant offered to prove by him that the district attorney promised him, if he would go on the stand and swear the whole truth, that he had the power and would dismiss Sharp's case, and not prosecute him; that Sharp replied he would only swear the truth, and nothing more. Counsel for State objected to this, and the objection was sustained; and counsel for appellant excepted to the action of the court on the ground that said testimony, considering the *182 statements of the witness, was material, as showing his innocence of the charge; and that he maintained his innocence notwithstanding the proffer of the district attorney. Appellant also objected to the closing argument of the district attorney, as follows: "Counsel for defense has told you that Tom Sharp's case has been dismissed, and that he will not be prosecuted for this offense, and can not possibly have any motive to swear falsely, — simply to shield George Brown, his indicted codefendant, who is now upon trial. Now, gentlemen, I know of no legal reason, if George Brown is convicted, why Tom Sharp will not be prosecuted, and also convicted, for this same offense." To which counsel for defendant objected on the ground that the case of Tom Sharp had been dismissed, and his evidence was free from the ban of suspicion; and that it was incompetent for the State in the closing argument to urge before the jury that he could and would be prosecuted for this same offense; that such remarks reflected upon the credibility of said witness; and, further, because said defendant, Brown, by his motion to sever and have Sharp tried first, was entitled under the law to have said testimony of said witness free from every ban of suspicion to swear falsely, which he would have done had Sharp been put upon trial and acquitted, and had the State not been permitted to evade the statute by a formal dismissal of the case against Sharp, the aforesaid witness." Appellant also, in his motion for new trial, files the affidavit of Tom Sharp to the effect that since the trial and conviction of appellant the district attorney has caused him to be rearrested on the same identical charge that had been dismissed against him, and shows in that connection that the reasons assigned for the dismissal of said cause were as follows: "Dismissed under article 709, Code of Criminal Procedure, for the purpose of allowing this defendant to be used as a witness in the trial of cause No. 802, and in compliance with the district attorney's announcement in said cause No. 802 at the opening of said trial." As stated before, we have thought proper to here state fully all that transpired in the court with reference to the witness Sharp, and the action of the court on the application of appellant to sever and try Sharp first.
Under the provisions of article 709, Code of Criminal Procedure, "the attorney representing the State may at any time under the rules provided in article 37, dismiss a prosecution against one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party." In the course of the trial of one of several defendants who were jointly indicted for murder and had severed in their defense, the district attorney has power to call up the case of any one of the defendants, and enter a nolle prosequi, for the purpose of making him a witness against defendant on trial. We find no case controverting this proposition, and the same was announced as the law as far back as Johnson v. State,
Appellant also complains of the remarks of the district attorney, but, as no special charge was presented asking the court to instruct the jury to disregard it, the same can not be reviewed.
Appellant complains that the court should have given the charge on accomplice testimony as to the witness Sal Armstrong. Without reviewing the evidence indicating Armstrong is an accomplice, we think appellant's contention is correct, and the court should have given this charge.
The examination of the witness Melvin Cude was unauthorized. Testimony taken before the grand jury is admissible solely where the truth or falsity of the witness is in question. In Spangler's case, 41 Texas Criminal Reports, 424, while we held it was not reversible error to use the grand jury testimony for the purpose of refreshing a witness' recollection, still the method pursued in that case was improper. In this case, as is well said by counsel in their brief: "If the State used the paper for the purpose of impeaching its own witness, this was improper. If counsel used the paper for the purpose of testing the memory of the witness with the view of impeaching his testimony, this was improper. If he used the paper to intimidate the witness, this was improper. If he used the paper as the basis of the cross-examination of his own witness, yet refused the use of the paper to the defendant and his counsel, this was improper." Evidently the paper in question was used for some or all of these purposes.
We do not think the court erred in refusing to give the requested charge as to the animal being in its accustomed range. The testimony showed that the alleged stolen animal at the time was in the pasture of Pryor; but it also showed that Slaughter's cattle, whose pasture adjoined Pryor's, were frequently in the latter's pasture, and said pasture might be regarded as the range of the alleged stolen animal.
It further occurs to us that a new trial should have been granted, under the peculiar circumstances connected with the testimony of the *186 witness Melvin Cude. The witnesses Vinton and Saltillo both testified for defendant to the effect that they were present when Brown and Sharp roped the yearling, and that it was not a Diamond T yearling, as claimed by the State, but a V bar yearling, as claimed by defendant. To overturn the force of this testimony, the State showed by the witness Cude that he took dinner with these two witnesses at a point some miles distant from where the animal was roped at the time these witnesses claimed they were present at the roping. This testimony of Melvin Cude was very material as destroying the effect of defendant's two witnesses. Subsequent to the trial, witness Cude made an affidavit that he was mistaken as to the day on which he took dinner with said witnesses Vinton and Saltillo; that he did not take dinner with them on the day of the theft, but on a different day. This was in the nature of newly discovered evidence; and, concede that the affidavit of Cude is true, showed very clearly that false testimony was used against appellant on a very material issue in his case. This, though unintentional and innocently done, was none the less effective in destroying material evidence for appellant.
There are some other assignments, not necessary to be discussed, but for the errors pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.
Addendum
While I agree to the disposition of the case made by the majority of the court, I do not concur in that portion of the opinion in regard to the right of severance. It appears from the action of the learned judge who tried the case that he construed article 709 as vesting a discretion in the district attorney to dismiss a prosecution as to one or more defendants jointly indicted with others, and so escape the effect of a motion to sever. It would also appear that this view is upheld and adopted by a majority of this court. I can not agree to this construction. Article 707 guarantees to a defendant the right to sever from his codefendant, and to have him tried first, in order to secure his testimony; said right being based on an affidavit that affiant verily believes there is not sufficient evidence against the codefendant whose evidence is desired to secure his conviction. Article 709 simply authorizes the attorney representing the State to dismiss a prosecution as to one or more defendants jointly indicted with others, on complying with article 37 (which requires that the motion be made in writing, and submitted to the judge), and the person so discharged may be introduced as a witness by either party. This latter article is absolutely independent of article 707, and I do not think it was intended to qualify it, or to take from a defendant any of the rights guaranteed him by the previous article in regard to severance. I certainly take it that article 707, by its express provisions, secures to a defendant the full benefit of a codefendant's testimony, unhampered by the cloud of a *187 prosecution that may be afterwards invoked. If the construction placed on these articles by a majority of this court is the correct one, then, in answer to a motion for severance under article 707, the State can simply dismiss the case against the codefendant for the time being, and thus permit him to testify for the defendant then being tried with the sword of Damocles hanging over him while he is giving his evidence. I take it that it will not be gainsaid, if article 707 is complied with, and the codefendant is first tried and acquitted, his testimony will be more valuable to his codefendant being tried than if the case is simply dismissed against the codefendant witness with the obligation on the part of the State not to afterwards prosecute him. But even this would be worth much more to a defendant being tried than the simple dismissal of a case against his codefendant in order to enable him to be a witness, with the understanding, however, that, as soon as the case being tried was disposed of, he would be rearrested and prosecuted. I do not deny that it is competent for the State to dismiss a prosecution pending as to one or more defendants jointly indicted with others, and, when such prosecution is dismissed, the person so discharged may be introduced as a witness by either party; but this is when the action of the court does not involve appellant's right to sever. In other words, whatever may be the construction placed on article 709, the right of severance guaranteed in article 707 can not be frustrated by a simple dismissal of the case against the codefendant. To test this matter, suppose that in answer to a motion to sever under article 707 the district attorney should, with the approval of the court, dismiss the case against the codefendant desired as a witness, and he should then be tendered as a witness to the codefendant being tried, if he should decline to testify, on the ground his evidence might inculpate himself, what power would exist in the court to compel him to testify? Evidently none, and consequently the mere dismissal of the case against him would serve no useful purpose. Suppose he did not claim his privilege, but proceeded to give his evidence in the case, what guarantee would the codefendant being tried have that, thus hampered and swearing, as it were, the halter around his neck, he would tell the truth, the whole truth, and nothing but the truth? It occurs to me that article 707 was intended to secure a right on behalf of a defendant who was indicted, either separately or jointly with others charged with the same crime; and that no other provision of the statute by judicial construction merely should be permitted to override and nullify the provisions of said article which were enacted for his benefit. If the construction placed on these articles by a majority of the court is sound, then the advantages guaranteed to a defendant, under the provisions of article 707 are overridden by article 709, and important rights guaranteed under the previous article are thus frustrated by a simple dismissal of the case against the codefendant. If this can be done at all, it must be with the distinct guarantee that the codefendant can not be again *188 prosecuted for the same offense which has been dismissed against him, and concerning which he is called upon to testify.
I notice that the opinion of the majority refers to King v. State, 35 Texas Criminal Reports, 472, and Shaw v. State, 39 Texas Criminal Reports, 174, in support of the views expressed. An inspection of said cases, far from sustaining the doctrine announced, is in contravention thereof. In both cases the right of severance is regarded as an absolute right when the provisions of the statute are compiled with. In the latter case we quote from the language of the court as follows: "It was no response to his motion that Wilson would be placed on the stand as a witness. He had a right to have Wilson tried first, and, if acquitted, he might use him as a witness unburdened in the pending prosecution against him; a right for him to testify as any other citizen, free from the particular charge, he being acquitted thereof, and not testifying under a cloud, and perhaps believing that, testifying strongly against appellant, it would go easier with him in this case." Entertaining the views herein expressed, I do not believe when a defendant makes a motion to sever, under article 707, he can be deprived of the advantages vouchsafed to him by said article by a simple dismissal of the case under article 709, with the reserved right on the part of the State to rearrest and prosecute the codefendant witness.
