Bruton v. State

| Tex. | Jul 1, 1858

Roberts, J.

On a first application for a continuance the defendant must state “ the facts which are expected to be proved by the witness ; and it must appear to the Court that they are material.” (Texas Code of Crim. Procedure, Art. 518, Sec. 3.)

The fact proposed to be established by these witnesses was, that the defendant was not in New Orleans on a particular day, about the 25th of July, 1857, but in the State of Texas, several hundred miles from New Orleans. It is sought to make this fact material by stating that he is charged with selling the negro in New Orleans about that time. He is not charged with that in the indictment. It must have been by some of the witnesses; if by any one, the charge was made. Suppose that he could show that the witness was mistaken about his being in New Orleans by ten or twenty days, that could not avail the defendant anything. The defendant should have stated facts sufficiently to show how it was material for him to disprove his being in New Orleans on that day. It will not do to permit a defendant to select a fact, abstractly indifferent, upon which he finds the witnesses under a misapprehension, and base an application for a continuance upon the necessity to disprove such fact. The Court below did not err in overruling the application for a continuance, and there was nothing developed on the trial to show that any wrong was done. Had such been the case, the reading of affidavit as evidence would not have cured the defect. We know of no principle upon which such a practice can be sanctioned in criminal cases.

The Code of Criminal Procedure (Art. 653) provides that “ a conviction cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offence committed ; and the corroboration is not sufficient if it merely shows the commission of the offence.”

The testimony of Dixon, the accomplice, was that Bruton, after making preparation several days, in co-operation with Kuykendall, started off with the negro Prank, alleged to be stolen, carried him to New Orleans, and there exchanged him for a mulatto girl, and brought her back home. A portion of this was testified to as an admission of Bruton to Dixon.

This was confirmed in several material points. Edward Francis testified, in confirmation of what Dixon said in relation to Bruton’s preparing for the trip, that Bruton got a new pair of saddle-bags, and some clothes, and also a saddle repaired, and that Bruton and a certain mule and horse were missing, and that Bruton returned and brought with him a mulatto girl. Mrs. McDow testified that Bruton came to her house the evening he left, and told her that he was going to be absent three or four weeks. After that he was missing some time; so also were the mule and horse missing, that Dixon said Bruton and the negro, Frank, rode off. After he returned the mulatto girl was at Kuykendall’s. Kendall confirmed the statements of Dixon as to Bruton and himself having been at Bichmond, and getting a fictitious bill of sale acknowledged before a Notary Public, preparatory to the trip. The negro Frank is found by Lewis in New Orleans, where Dixon stated he saw him. Martin testified that in the summer of 1857 he met with Bruton in Galveston, who said he had come off the steamer, and had not been at Houston lately ; they went up to Houston together, and Bruton then had along with him the mulatto girl.

Dixon went off afterwards with this girl to New Orleans, and thence to Shreveport, where he was arrested and brought back. He stated that it was on this trip that he saw the negro Frank in New Orleans. In confirmation of Dixon’s being at New Orleans, and of the truth of his narration, a letter of introduction given to him by a house in New Orleans was offered in evidence, its authority being well established by proving the hand-writing. This letter was objected to by the defendant, because it was a corroboration of Dixon’s testimony in an immaterial part; which objection was overruled, and this ruling of the Court is assigned as error. Our Code establishes the rule, in accordance with what is the practice of Courts generally, requiring the testimony of an accomplice to be corroborated in some matter connecting the defendant with the commission of the offence. (Code of C. P. Art. 653 ; 1 Greenleaf Ev. Sec. 831 and note ; 1 Phillips Ev. 34.)

This must of course be in a material matter. And the Court so charged the jury in this case. The question here presented is, that where the testimony of an accomplice is corroborated in numerous important and material parts of his evidence, will the admission by the Court of a corroboration in an immaterial part vitiate the verdict found by the jury upon the whole of the evidence. No authority has been found establishing such a doctrine. Indeed it would often be almost impossible to permit a corroboration in a material part, without at the same time permitting it in an immaterial part.

A case might happen that an undue importance might be attached to a corroboration in immaterial matters, by which the jury would be misled. But there is no indication in the record that such could have been the case here. We do not think that the admission of this testimony by the Court under the circumstances was error, though it had been deemed immaterial. Another view of this evidence may be presented. This witness proved, as an independent fact, that he saw the negro Frank in New Orleans. This was a material fact in the general proof of guilt. This letter is strong confirmatory evidence that Dixon was in New Orleans, where he could see the negro Prank at that time, who was afterwards found there by Lewis, when he carried back the girl and re-exchanged the negroes. It is always permissible to strengthen a witness’ testimony by connected incidents showing its consistency and reasonableness.

Judgment affirmed.