Anderson v. State , 56 Tex. Crim. 360 ( 1909 )

This case was affirmed on a previous day of this term, and now comes before us on motion for rehearing.

Appellant's first ground of the motion is that this court erred in refusing to sustain appellant's fourth assignment of error, wherein appellant complains that he should have been granted a severance. We held in the original opinion that, in order to entitle a defendant to a severance, where he was indicted separately or jointly for the same offense, or for a matter growing out of the same transaction, that he would not be entitled to said severance unless the evidence showed that he could be tried and convicted as principal, accomplice or accessory for the offense for which he was tried. Appellant controverts this statement in his motion, and insists that the statute is broader, and that the court put an unwarranted limitation upon the provisions of the statute. In this connection appellant cites us to article 807 of the Code of Criminal Procedure, which provides that, where a person stands indicted for an offense growing out of the same transaction, that he is entitled to a severance, insisting that the word "transaction" in the statute has a broader signification and meaning than the court gave same. We do not think so. We are apprised of no decision of this court interpreting this word in the severance statute, and appellant cites us to none, but it occurred to us then and now that, if two parties attend a ball, and one commits a rape and the other a murder at said ball, that it would be an erroneous and tortious construction of this severance statute to say that they could claim a severance on the ground that the two offenses, or that each offense, grew out of the same "transaction." It might be that the ball was the occasion of both crimes. Or suppose two parties are working in a field, engaged each in plowing side by side, and one kills one of the mules he is plowing with a pistol, and the other takes the pistol and shoots a man, no complicity being shown by the transaction or acting together on the part of the defendants. Certainly they could not claim a severance within the purview of the statute under consideration on the ground that the two offenses grew out of the same transaction. Now, appellant and his brother were indicted for perjury. There is nothing in the record, nor in the indictment, to show that they agreed, each with the other, to commit perjury, and, therefore, they become separate and distinct offenses. There is no suggestion in the indictment against this appellant that he committed subornation of perjury, or that he agreed with his brother to commit perjury. While it is true they both swore falsely as to whether a certain party was at a certain game of cards upon Nashes Creek, and both swore in substance that he was, yet there is no agreement shown between them to do so; there is no suggestion in the record that the testimony that would lead to the conviction of one would bring about the conviction of the other. We therefore adhere to the original opinion on this question. Appellant cites us to the case of Crutchfield v. State, 7 Texas Crim. App., 65. In that case defendant, being on trial for theft, proposed to introduce as a witness a person who in a separate indictment was charged as a receiver of the stolen property. Held, that the proposed witness was properly excluded, in view of the provision of the Code which disqualifies principals, accessories and accomplices from testifying in behalf of each other. We readily agree to this proposition, and it clearly appears to us it is not at variance in any respect from the original opinion in this case. Where parties are indicted as principals, accomplices or accessories, then they are particeps criminis to the main offense, and certainly would be entitled to a severance upon a proper legal showing, but the appellant is not indicted in that manner, nor is any contention made in this record that Ex Anderson, his brother, was connected in any way with the criminal act on the defendant's part in swearing falsely. There is no bill of exceptions in this record complaining that the court refused to permit Ex Anderson to testify, but the severance is only insisted on the theory that they wanted Ex Anderson tried first. We know of no rule of law that disqualifies Ex Anderson from testifying if he had been offered in this case. Appellant further cites us to the case of Shaw v. State, 39 Tex.Crim. Rep., wherein it was held that a defendant has a right to have a witness in his behalf testify free from the cloud cast upon his reputation by an indictment, where such indictment grows out of the same transaction. We know of no provision of the Constitution that would be invaded by depriving a defendant of this right. It is clearly a statutory right, and we see nothing in the Shaw case, supra, to sustain appellant's contention that it is a constitutional right. We think it is a salutary statute, and, where its letter or spirit is violated, we would not hesitate to reverse a case, but the law of severance is purely statutory. We have read with interest and pleasure appellant's able motion for a rehearing, and have reviewed all of his authorities on the ground just discussed in his motion, and must say that the original opinion on this question is correct.

Appellant's second ground of the motion for rehearing complains the court erred in refusing to hold that the testimony taken before the inquest held by Geo. R. Dix over the body of Wash Anderson, as it affected the statement of John Anderson, was incompetent, irrelevant, immaterial and prejudicial to a fair and impartial trial of John Anderson. The contention of appellant that this statement was improperly admitted as evidence against him is based upon the fact that it was not offered for the purpose of impeaching defendant as a witness, and because it was an inquiry made by a justice of the peace, direct and specific, as to what had occurred at a supper given on Nashes Creek. That the statement does not disclose, nor does any fact connected with the inquest, that the justice of the peace knew anything about the gambling that had been going on the night Wash Anderson was burned to death, but it was known that there was a supper that night, and all the parties had been seen at the supper at one time and another that night. That the place of the supper and the place of the gambling were two separate and distinct places. Appellant further contends that this fact should not be ignored by the court, for it is a fact, and as much a fact as the city of Austin and the city of San Antonio constitute distinct and separate places. Appellant further contends that the question asked defendant was, Whether everything went off all right at the supper, and he answered "Yes." That if he had been interrogated about what had happened at the place of gambling his statement would have been pertinent, and would have been admissible, and would have been a strong circumstance tending to show that he had sworn falsely on the trial of the McClures. We have stated appellant's insistence in his motion for rehearing fully in order to review the matter anew. By consulting the original opinion it will be seen that appellant is correct in saying that the defendant testified at the inquest as follows: "We were at a supper on Nashes Creek. Everything went off all right at the supper. I left about three o'clock. The next time I saw Wash Anderson, deceased, was at his house, dead." This is all the bill of exception states as to what he swore. Then follows appellant's objection. Appellant's objections state, as he now contends in his motion, that the transaction was at another and different place; that is, the supper was at one place on Nashes Creek and the gambling at another, but the bill does not show this. It is the uniform rule of this court that objections to testimony are not statements of fact, and will not be treated as such. Then, outside of appellant's objections in his bill of exceptions, there is nothing to indicate that the supper on Nashes Creek was not at identically the same place and time that the gambling was. So, in this particular the bill of exception, from appellant's standpoint, is inaccurate, but this is a matter that we can not assist him about. We have to take the bill of exception as we find it. That grounds of objection in bills of exception are not statements of fact is a rule so well settled we do not deem it necessary to cite authorities. But if the inquest inquiry was about a matter different from that upon which the prosecution in this case is predicated, as stated in the original opinion, it would still be harmless error to introduce the statement, because it would have no legitimate, pertinent or criminative bearing upon the issue in this trial, but this fact, as stated, does not appear in the bill. For all that the bill shows the evidence might have shown, at the time this testimony was introduced, that the supper and gambling were at such proximity one to the other, and had such pertinent bearing one upon the other, as to make them practically one and the same occasion.

The third ground of the motion complains the court erred in refusing to sustain appellant's seventh assignment of error for the reason that, in a case where the witnesses by whom the State seeks to prove the falsity of the alleged testimony given by the person charged with perjury, the definition that a credible witness is one who, being competent to give evidence, is worthy of belief, is as a general rule sufficient, but where the State's witnesses have been impeached by reputable citizens, to the effect that their general reputation for truth and veracity is bad, and where they are self-confessed criminals, gamblers, etc., the charge asked by appellant to the effect that such witnesses, to be credible, should be above reproach, should have been given. To support appellant's contention, wherein he contends that the court erred in refusing to give the definition of a credible witness, he cites us to the case of Smith v. State, 22 Texas Crim. App., 196. As stated by appellant, and we heartily concede the accuracy of the decision, which was rendered by our eminent and lamented Judge White, it was there held that a credible witness is one whose character for truth is above reproach. This was not the charge asked by appellant, however. The charge appellant asked was as follows: "In this cause the jury is instructed that, in connection with the general charge given by the court relating to the number and character of witnesses necessary to convict in cases of perjury, you are further instructed that a `credible witness,' such as has been referred to in said general charge, is one whose character is above reproach." There is a vast difference between a witness' character and his reputation for truth being above reproach. We cheerfully concede both the fact that appellant is wrong in his contention and that he cites good authorities, but there is a clear misapprehension of the authorities.

We have been entertained by appellant's able motion for rehearing, and especially wish to commend his research and industry in the preparation of this motion, but must say that after a very careful and painstaking review of the record, in the light of his motion, that there is no such error in the record as authorizes the granting of this motion, and same is hereby overruled.

Overruled.