Appellant was tried in the Criminal District Court, of Dallas County, on the charge of murder, was convicted of murder of the first degree, and his punishment assessed at death. From the judgment of the lower court he prosecutes this appeal. There is but one question presented in the record in this case which requires consideration by us. It appears from the bill of exceptions that after the
evidence for the State and appellant had been introduced, and after the arguments of the District Attorney and appellant's counsel had been closed, and the judge had read his charge to the jury, the court permitted the case to be reopened, and allowed evidence to be introduced by the State to prove that the name of the alleged murdered person was "Lou Williams," as charged in the indictment; and that thereafter the court allowed the State and appellant fifteen minutes each for argument before the jury on the new evidence offered. As stated, the appellant objected to this, and saved his bill of exceptions articles of our Code of Criminal Procedure relating to argument, and the introduction of evidence after argument has begun, are as follows: Article 660 regulates the proceedings on the trial of the case, requires the testimony on the part of the State to be first introduced. Then testimony on the part of the defendant and rebutting testimony on the part of the State and defendant may be offered. Article 667, authorizes the court to regulate the order of the argument, but, in all cases, the State's counsel shall have the right to make the concluding address to the jury. Article 668, limits the power of the court to restrict the argument to a less number of addresses than two on each side. Article 677, requires the court, after the argument of any criminal cause has been concluded, in all felony cases to deliver a written charge to the jury. Article 697, authorizes the jury, when they disagree as to the statement of any particular witness, upon applying to the court, to have such witness again brought upon the stand, and detail his testimony on the particular point of disagreement; and, in such case, he shall be instructed to make his statement in the language used upon his examination, as near as he can. Article 661, which is the only statute which authorizes the court to allow testimony to be introduced after the evidence has closed and the argument has begun, reads as follows: "The court shall allow testimony to be introduced at any time before the argument of the case is concluded, if it appeal that it is necessary to a due administration of justice." This article has frequently been invoked in the trial courts, in order to introduce testimony after the argument of a cause has begun. Donahoe v. State, 12 Tex.Crim. App., 297; Thomas v. State, 11 Tex.Crim. App., 315; Hewitt v. State, 10 Tex.Crim. App., 501. And this appears to have been the practice before the adoption of the Code (see Nutt v. State,19 Tex. 340.), and it has been uniformly held, that the admission of testimony after the argument has begun and before it has closed, is in the sound discretion of the trial judge, and this discretion will not be revised unless it clearly appears to have been abused. (Timbrook v. State, 18 Tex.Crim. App., 1). we are not aware — though we have made a thorough research of the authorities — that the question presented in this case has ever been before this court, and so the construction of Art. 661, Code Crim. Proc., in this regard, is a new question with us. We have looked at the decisions of other States to see what light they shed on the question. In Alabama, we find one case only in which it is stated that it is
within the discretion of the trial court to allow evidence of venue after the close of the argument. It is simply so held, without any reasoning or citation of authorities on the part of the court, and we presume that the State of Alabama had no such statute on the subject, as ours. See, Dave v. State, 22 Ala. 23. In Mary v. State, 5 Mo., 80, this question appears to have come before the court. No statute is quoted, and the judge appears to have considered the matter as one of practice, in the absence of statutory regulation. We quote as follows, from the case of Mary v. State: "It appears by the bill of exceptions, that the State, by the prosecuting attorney, closed its evidence, and that the defendant gave none, and that then the court was about to adjourn until next day, before the argument could take place; whereon it was agreed, between the Circuit Attorney and the prisoner's counsel, under leave of the court, that the jury might disperse until the next morning, on the condition that the defendant should not and would not offer any testimony at all. The court adjourned until next morning, and the jury dispersed. On the opening of the court the next day the jury came, and the State offered to re-examine some of the witnesses examined the day before, and to examine some others not examined at all. The prisoner's counsel objected to this. The court overruled the objection, and the witnesses were examined. What the witnesses deposed to does not appear, nor do I consider it material it should appear. The objection goes against the danger of the practice. It seems to me that on this point the court erred. I never have yet seen a case that goes as far as this case goes. When the plaintiff has closed his evidence in chief, if the defendant gives none, he cannot, merely on the ground that he forgot something, be allowed to examine new witnesses, nor to re-examine old ones. This is not allowed, for two reasons: First, because there must be an end of the examination; and, secondly, because to examine a witness after he has been discharged, and after the evidence is closed, is to allow him an opportunity to fill up gaps by perjury; and to call others, or the same, after they have mingled with the crowd, is of most dangerous consequence to truth and justice. This is the general rule: After the plaintiff has closed his case, he can only give thereafter rebutting testimony; but that can only take place when the other party gives some evidence, otherwise there can be nothing to rebut. In the case at bar, the defendant had no testimony at all. Consequently the evidence the State gave afterwards was not of that character. There is no reason given on the record why the prosecution asked leave and was permitted to give the amendatory evidence. It is possible there may be cases in which it might be allowed, but I cannot now think of them. The case stands, then, on the ground that the prosecution discovered some defect in the evidence that might be supplied, and had leave, as matter of right, to amend his hold. If this is permitted, what is to hinder parties from manufacturing evidence over night to fit the case, after, perhaps, they may have some hint from some unwary juror as to the opinion of the jury. If such a door is once opened, both good and bad men will
enter the same. I admit that good men would not take unlawful advantage of the privilege, but bad ones would; and as the law is not wise enough to distinguish between the bad and the good, it forbids both good and bad from the use of the privilege. If this door were once opened, I venture to believe that life and property would be more and more insecure, and perjury become more than ever an article of purchase. For these reasons, I am of the opinion that the judgment of the Circuit Court of Crawford County ought to be reversed." Construing our statute (Article 661) according to its verbiage, and with reference to the object and intent of the legislature, what does its language import? As has already been shown from the articles quoted, our Code of Criminal Procedure attempts to regulate and control the order and proceedings in the trial of criminal cases. It regulates the introduction of evidence and the argument of counsel, and there is but one contingency in which a witness is authorized to be called back before the jury after the argument has been concluded, and that is merely to repeat the testimony theretofore given in by him, and which can only be done at the instance of the jury itself. No other article in our Code of Criminal Procedure authorizes a witness to be called before the jury after the argument is closed, and this, as will be seen, was not for the purpose of introducing new testimony, but to reiterate that which had been previously stated before the jury. The general rule, as laid down by the statute, is that all testimony shall be adduced before the jury before the beginning of the argument. Article 661, Code Crim. Proc., however, provides that in one contingency the court may authorize the introduction of evidence after the argument has begun and before its close, and under the ordinary rules of construction we are bound to construe this as in exception to the general rule, and the exception marks the limit of the power of the court in this regard. It says, "evidence may be introducted before the close of the argument," and to our minds this language conveys the idea that evidence should not be introduced after the close of the argument, in as strong terms as if the legislature had said so in direct language. If we had no statute on the subject, we might be inclined to enlarge the rule, and to admit testimony ad libitum, as emergencies appealing to the discretion of the court might arise after the jury had retired to consider the case; but still, if we had no statute, such a rule would be of doubtful propriety, and would render the trial of cases interminable; but, having a statute on the subject, which puts up the gap against the introduction of testimony after the argument has been concluded, we are forbidden to consult emergencies, or to make a new rule, founded upon judicial discretion outside the statute. There must be an end to the introduction of evidence somewhere, and if we depart from our statute on the subject the question then would be, where will we erect the next barrier beyond which we would declare that no further evidence could be adduced? We would simply be at sea, with no rule on the subject, save as judicial necessity might suggest. So, whatever hardship may result in any particular case, we believe that the administration of justice is
best conserved by adhering to the plain rules of law as enunciated by our statute. As we believe, the object and purpose of the article in question was to mark the limit beyond which no court should be authorized to allow the introduction of testimony; and as the court in this case, in admitting the testimony of witnesses as to the name of the deceased party, violated the provisions of our statute on this subject, this case must be reversed. It has been suggested that the statement of facts in the case shows that the name "Lou Williams," as alleged in the indictment, was sufficiently proven, as she was repeatedly by witnesses alluded to as Mrs. Williams, the wife of L.E. Williams, the appellant. This is doubtful; but, conceding that the contention is correct, this matter should have been given to the jury in the shape where the evidence left it at the close of the argument, and they should have been afforded no new evidence on this or any other question involved in the case. In the view we take of the case, it is unnecessary to discuss other assignments, but for the error of the court in reopening the case after the close of the argument the judgment of the lower court is reversed, and the cause remanded.
Reversed and Remanded.