Munoz v. State , 147 Tex. Crim. 212 ( 1944 )

In his motion for a rehearing, appellant reiterates his contention that we erred in our original opinion in holding that no error was committed by the trial court in declining to sustain his motion for a severance, and sustained the State's motion to dismiss the case against Flores, a co-defendant, thus making him (Flores) available as a witness for appellant; that the act on the part of the State in requesting the dismissal of the case against Flores was not made in good faith but was in fact done to circumvent the law relating to the subject of severance. He draws his conclusion from the fact that Flores was not discharged but held in jail during the trial and that after he had testified in behalf of appellant, he was re-indicted for the offense. Upon a casual consideration, his deductions from the facts appear plausible; but when the facts are such that divergent conclusions may be reached, we would not be justified in following the one which leads to insincerity when the other leads to good faith, because the presumption obtains that every person acts in good faith until the contrary is made to appear. In the instant case, Flores testified in behalf of the appellant. It is not shown, or even claimed, that he did not freely and fully testify to all the facts within his knowledge relating to the offense for which appellant was on trial. In the absence of such a showing, no injury is made to appear. The fact that Flores, by his own testimony, implicated himself in the murder, which subsequently caused him to be re-indicted, would not justify the conclusion that the dismissal of his case was not made in good faith, nor would the fact that he was held in custody during the trial of appellant's case justify such a conclusion. He was a witness for the appellant, and if the District Attorney and the Court deemed it advisable to hold him in custody in order to secure his attendance in court during the trial, it would not authorize us to say that the dismissal of his case was to circumvent the law. Consequently, we see no reason to recede from the conclusion expressed in our original opinion. Appellant cites us to the case of Smith v. State, 116 S.W. 572. We have again examined that case and think that, on the facts, it is easily distinguishable from the instant case.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.