Bishop v. State

• Decision Date: 28 March 1917
• Docket Number: (No. 4366.)
• Citation: 194 S.W. 389
• Parties: BISHOP v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W. 389

BISHOP v. STATE.

(No. 4366.)

Court of Criminal Appeals of Texas.

March 28, 1917.

Appeal from District Court, Jones County; Jno. B. Thomas, Judge.

W. T. Bishop was convicted of murder, and he appeals. Reversed and remanded.

R. E. Rodgers and Jack Rattikin, both of Anson, James L. Shepherd, Jr., of Colorado, Tex., and A. C. Smith and E. T. Brooks, both of Anson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was indicted and convicted of murder, and his punishment assessed at death.

The evidence was wholly circumstantial. There were more than 90 witnesses. Before the trial began the court asked if either party desired the rule. Receiving no reply, he directed the witnesses to take their seats. About that time appellant's counsel requested the court to put the witnesses under the rule, and this request being refused, appellant excepted.

"The expedient of separating a party's witnesses, in order to detect falsehood by exposing inconsistencies, seems to have been early discovered and long practiced in various communities. Though probably not in itself older or more widespread than some other fundamental notions of proof, nevertheless its age and universality have come to be more emphasized in our own legal annals because of the instance recorded and handed down in the Apocryphal Scriptures. The story of Daniel's judgment in Susanna's case has given to this expedient a unique and classical place in our law as well as in our literature." 3 Wigmore on Ev. § 1837, p. 2381.

The story of Susanna is familiar. Her accusers testified in the presence of each other to her guilt. She was about to be condemned when Daniel interposed, saying: "Put these two aside, one far from another, and I will examine them." His examination disclosed such discrepancies in their testimony as resulted in the release of Susanna and the condemnation of her accusers. Since then the importance of the separation of witnesses has been regarded as a valuable adjunct to the cross-examination of witnesses and a right accorded whenever demanded in the trial of causes. 3 Wigmore on Ev. § 1837, p. 2382; Sir Walter Raleigh's Trial, 1 Jardine, Crim. Tr. 419; Sidney's Trial, 9 How. St. Tr. 817, 861; Rosewell's Trial, 10 How. St. Tr. 147, 190; Cook's Trial, 13 How. St. Tr. 311, 348, note; Fenwick's Trial, Id. 537, 722; Braddon, Observations on the Earl of Essex's Murder, 9 How. St. Tr. 1229, 1278, 1283, 1294; 2 Bishop's Crim. Proc. § 1188.

With reference to the matter, Mr. Wigmore in his work on Evidence (volume 3, § 1839, p. 2388) uses the following language:

"No rule, therefore, should ever be laid down which will by possibility deprive an opponent of the chance of exposing perjury. Finally, it cannot be left with the judge to say whether the resort to this expedient is needed; not even the claimant himself can know that it will do him service; he can merely hope for its success. He must be allowed to have the benefit of the chance, if he thinks that there is such a chance. To require him to show some probable need to the judge, and to leave to the latter the estimation of the need, is to misunderstand the whole virtue of the expedient, and to deny it in perhaps that very situation of forlorn hope and desperate extreme when it is most valuable and most demandable."

From Watts v. Holland, 56 Tex. 59, we take the following quotation:

"The existence of the rule, as applicable to all kinds of cases, is not, of course, to be confounded with the regulations concerning its application to a given case. The common-law rule of evidence and procedure confides to the judge a discretionary authority as to when the rule may be invoked and enforced. In our state no such discretion is extended to the judge in criminal cases; the statute (article 662, R. S., Code Proc.) gives the right to either party to invoke the rule (Brown v. State, 3 Tex. App. 295). Whilst it is laid down by text-writers, whose conclusions are well supported by authority, that the enforcement of the rule lies within the discretion of the court, high authority is not wanting to maintain the rule as one which parties are entitled to demand the enforcement of. Alderson, B., in Southey v. Nash, 7 C. & P. 632 (1 Greenl. § 432, note 1), expressly recognized it as `the right of either party, at any moment, to require that the unexamined witnesses shall leave the court.'"

From the opinion in the same case we quote the following:

"As thus laid down by both of these standard authorities (1 Greenl. on Ev. § 431, and Phillips on Ev. vol. 2, p. 395), what is called `a rule' seems to be intended as such in fact, as well as in name; a definite regulation prescribed by the law for the conduct of trials—uniform and universal—to which all parties litigant are entitled, subject to such judicious regulations confided to the judge's discretion as right and justice exact. It is a rule for the ascertainment of truth, and the doing of justice, wherever the purposes of both require it; and being a rule of law to regulate trials, every citizen, under the Constitution and laws of the country, is entitled to its benefits as a part of the law. To capriciously deny it to him to the deprivation of his property would be to do so without sanction of law—`the law of the land.' * * * The refusal, in a proper case, to administer to a party the benefits of a rule of law, on which the security in his rights of property depended, * * * would amount, in effect, to the substitution of an unregulated, and, as it might be, capricious and despotic, discretion in name, but mere personal will in fact, for the `law of the land.'"

From the opinion of Judge Wheeler, in the case of Hipp v. Bissell, 3 Tex. 21, we quote the following:

"When there is no rule, or when the rule is inapplicable, or does not afford a perfect guide, then there is room for discretion; and from the necessity of the case, it must exist. There may be cases to which no known rules or fixed principles can be applied; and the discretion which must be exercised cannot be the subject of revision. But when there are known rules of action prescribed, there can be nowhere a discretion to dispense with those rules."

The text-writers and authorities discussed so far relate to the right to have the separation of the witnesses given by the common law. This right as it pertains to criminal procedure was crystallized into a statute in this state at an early date, providing that on request of either party the witnesses may be sworn and placed in custody of an officer and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the case. This is termed placing the witnesses under the rule. Article 719, C. C. P.

The impracticability of applying the rule to all witnesses has been recognized both under the common-law practice and the enforcement of the statute mentioned. Thus persons assisting in the prosecution or defense and parties to the suit are among those who are exempt, and it happens at times that some witness or witnesses are discovered after the trial begins or by inadvertence overlooked at the beginning of the trial, and who from these and other causes have heard some of the testimony, and it has been generally held that in determining the circumstances under which such witnesses may or may not testify the court may exercise a judicial discretion, which will not be reviewed in the absence of its abuse. Vernon's Ann. C. C. P. art. 719, and cases cited.

Many cases are listed at pages 398, 399, Vernon's Ann. C. C. P., illustrating the application of this principle to various states of fact, and finally the rule deduced from these cases is stated at page 399 as follows:

"On any trial, at the request of either party, the witnesses may be placed under the rule, and those summoned for the prosecution may be kept separate from those summoned for the defense, if the court sees proper to so direct; and they may be placed in the custody of an officer or be allowed to go at large, under a like discretion. The trial judge is invested with a wide discretion in all matters relating to this procedure, and such discretion will not be revised on appeal unless it has been abused, but the right to have witnesses placed under the rule is a right given by law, and it should not be denied or substantially abridged at the arbitrary discretion of the judge. McMillan v. State, 7 Tex. App. 142; Walling v. State, 7 Tex. App. 625; Shields v. State, 8 Tex. App. 427; Estep v. State, 9 Tex. App. 366; Avery v. State, 10 Tex. App. 199; Johnson v. State, 9 Tex. App. 571; Hoy v. State, 11 Tex. App. 32; Cross v. State, 11 Tex. App. 84; Powell v. State, 13 Tex. App. 244; Walker v. State, 17 Tex. App. 16; Kennedy v. State, 19 Tex. App. 618; Bond v. State, 20 Tex. App. 421; Goins v. State, 41 Tex. 334; Sherwood v. State, 42 Tex. 498; Bland v. State 59 S. W. 1119."

In Clary v. State, 68 Tex. Cr. R. 290, 150 S. W. 919, this court, in an opinion written by Judge Harper, used the following language:

"The court in approving the bill states that, when the witnesses were sworn, he asked if it was desired that the witnesses be placed under the rule, and no request was made, but that subsequently defendant did make the request. We will state that, when the request was made, it should have been granted, as article 719 of the Code of Criminal Procedure gives to the defendant the right to make this demand at any time while the evidence is being heard."

The question here presented is not one in which one or more witnesses are excused from the rule and permitted to testify, but it is one in which the question presented to the court is whether the arbitrary denial by the trial court of the right to have the witnesses separated when testifying can be sanctioned by this court. The appellant's defense was insanity. He introduced some 30 witnesses on the trial. These with the 60 witnesses introduced by ...