Lead Opinion
Aрpellant was convicted in the District Court of Collin County of the offense of selling intoxicating liquor, ■ and his punishment fixed at two years in the penitentiary.
We consider but the single question of the alleged еrror in refusing a new trial. The conviction rested upon the testimony of Jim Williams who said he bought four pints of liquor from appellant on the date relied on by the State, paying him $1.50 for each pint. In addition to the testimony of this witness the State offered as part of its rebuttal the testimony of the constаble of the precinct in which appellant lived, who said that on the morning after the date оf the-alleged sale he searched the house of appellant and found about a tаblespoonful of whisky in a bottle between the kitchen and the smoke-house, and in the smoke-house found a copper pot or boiler such as constitutes part of a still, and found about a fourth of a barrel of mash. This was- the State’s case.
In support of his motion for new trial apрellant attached an affidavit that State witness Williams had retracted and stated that his testimony as given on the trial was untrue. The learned trial court heard evidence in support of this motion аnd on said hearing Jim Williams appeared and swore that his testimony as given on the trial was false, аnd that he in fact did not buy any liquor from appellant as testified to by him upon the trial. The motion for nеw trial was overruled. As stated, the only error claimed and here discussed is the refusal of said new triаl.
In support of the contention that the new trial should have been granted appellant cites Mann v. State,
We are of opinion that the conviction should not stand. We dо not care to lengthen the opinion by a discussion of the cases mentioned, but believe them to announce the rule that when the State is compelled to rely for its conviction upon the testimony of a witness who afterward and before the motion for new trial is acted upon, retracts the truth of said testimony and himself appears before the court and under oath affirms thаt the testimony as given by him originally was not true; and when the facts show that without such testimony the State has no case, the conviction should be set aside. In McConnell v. State,
The Assistant Attorney General representing the State with this court is tremendously crowded with work, and we desire to commend the action of the county attorney of Collin County in following this case to this court and here presenting and filing a brief thoroughly discussing the authorities on both sides оf this question.
For the reason stated the judgment will be reversed and the cause remanded.
Reversed and iremanded.
Addendum
ON REHEARING.
June 20, 1923.
To grant the State’s motion herein would be to set the precedent that in every case where the witnеss for the State upon whose testimony conviction was had, made affidavit or testified in support of the motion for new trial, that his former testimony was false, then the motives and reasons for such retraction might be shown by the State and if in the opinion of the trial court such motives were corruрt or such reasons insufficient, the motion for new trial based upon such retraction, might be properly refused. It seems to us that the reason for granting a new trial in such case goes deeper and rests on the proposition that a citizen should not be punished or deprived of his life or libеrty upon the testimony of one whose veracity is thus shown to be wanting. In this case when the witness originally gave evidence for the State upon which conviction was had, he was in jail awaiting actiоn by the grand jury against him upon two charges of felony. In this condition he gave testimony favorable to the State. In resisting the application for new trial based on the sworn retraction of the truth of his testimony by said witness, the State now contends that the association in jail *640 since the trial herein, of appellant and said witness, has brought about this retraction, and in addition the State supports its claim by proof of officers that they did not coerce the witness to give the testimony for the State upon the original trial, as is also asserted in appellant’s application. Thesе matters might form the basis of a perjury prosecution against said witness and perhaps ought to dо so, but we doubt the soundness of the position of the State which in one breath urges that the witness is now in rеtracting a perjurer, and in the next, — because he is now believed to be such, a conviction had on his testimony should not be set aside but be permitted to stand by the overruling of the motion for new trial. We regret we can not agree with this contention.
The motion for rehearing will be overruled.
Overruled.