Brown v. State

• Decision Date: 29 June 1900
• Citation: 58 S.W. 131
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

58 S.W. 131

BROWN v. STATE.

Court of Criminal Appeals of Texas.

June 29, 1900.

Appeal from district court, Frio county; M. F. Lowe, Judge.

George Brown was prosecuted for theft, and convicted, and appeals. Reversed.

Denman, Franklin, Cobbs & McGown, J. T. Bivens, T. P. Morris, and W. A. H. Miller, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; and he prosecutes this appeal.

Appellant was jointly indicted with one Tom Sharp for the theft of the yearling in question. On the trial appellant filed his affidavit under article 707, Code Cr. Proc., for a severance, claiming there was not sufficient evidence against his co-defendant, Sharp, to secure his conviction; and that he desired him tried first, for the purpose of securing his evidence. The district attorney objected to said motion for severance, stating that the state would use Sharp as a witness, and defendant could cross-examine him; if the state should not use said Sharp as a witness, that defendant would be permitted to use him. On this statement of the district attorney the court refused to put Sharp on trial first, but put appellant on trial, without at the time dismissing as to Sharp. Afterwards, and during the trial, the state closed its testimony without putting Sharp on the stand, or dismissing the case as to him. Appellant then proposed to put Sharp on the stand as a witness on his behalf, and the district attorney dismissed the case as to him, and he was sworn and testified. The court, in explaining this bill, says, "The state had the right to dismiss as to Sharp under the law, and there was no injury to defendant Brown." There are other bills of exception involving this matter that had as well be stated here, as all of them together bring in review the legality of the action of the court overruling appellant's motion to sever. When the witness Sharp was on the stand, defendant offered to prove by him that the district attorney promised him, if he would go on the stand and swear the whole truth, that he had the power and would dismiss Sharp's case, and not prosecute him; that Sharp replied he would only swear the truth, and nothing more. Counsel for state objected to this, and the objection was sustained; and counsel for appellant excepted to the action of the court on the ground that said testimony, considering the statements of the witness, was material, as showing his innocence of the charge; and that he maintained his innocence notwithstanding the proffer of the district attorney. Appellant also objected to the closing argument of the district attorney, as follows: "Counsel for defense has told you that Tom Sharp's case has been dismissed, and that he will not be prosecuted for this offense, and cannot possibly have any motive to swear falsely,—simply to shield George Brown, his indicted co-defendant, who is now upon trial. Now, gentlemen, I know of no legal reason, if George Brown is convicted, why Tom Sharp will not be prosecuted, and also convicted, for this same offense." To which counsel for defendant objected on the ground that the case of Tom Sharp had been dismissed, and his evidence was free from the ban of suspicion; and that it was incompetent for the state in the closing argument to urge before the jury that he could and would be prosecuted for this same offense; that such remarks reflected upon the credibility of said witness; and, further, because said defendant Brown, by his motion to swear, and have Sharp tried first, was entitled under the law to have said testimony of said witness free from every ban of suspicion to swear falsely, which he would have done had Sharp been put upon trial and acquitted, and had the state not been permitted to evade the statute by a formal dismissal of the case against Sharp, the aforesaid witness." Appellant also, in his motion for new trial, files the affidavit of Tom Sharp to the effect that since the trial and conviction of appellant the district attorney has caused him to be rearrested on the same identical charge that had been dismissed against him, and shows in that connection that the reasons assigned for the dismissal of said cause were as follows: "Dismissed under article 709, Code Cr. Proc., for the purpose of allowing this defendant to be used as a witness in the trial of cause No. 802, and in compliance with district attorney's announcement in said cause No. 802 at the opening of said trial." As stated before, we have thought proper to here state fully all that transpired in the court with reference to the witness Sharp, and the action of the court on the application of appellant to sever and try Sharp first.

Under the provisions of article 709, Code Cr. Proc., "the attorney representing the state may at any time under the rules provided in article 37, dismiss a prosecution against one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party." In the course of the trial of one of several defendants who were jointly indicted for murder, and had severed in their defense, the district attorney has power to call up the case of any one of the defendants, and enter a nolle prosequi, for the purpose of making him a witness against defendant on trial. We find no case controverting this proposition, and the same was announced as the law as far back as Johnson v. State, 33 Tex. 570. It appears from the foregoing statement that the district attorney dismissed the prosecution against Sharp. There is nothing in the provisions of article 709 and article 37 that places any character or kind of limitation upon the right of the judge, upon proper application made by the district attorney, to dismiss a prosecution against any defendant against whom an indictment may be pending. It is a well-known rule of statutory construction that all the provisions of the Code of Procedure must be considered as a whole; and articles 37 and 709 must be construed together with article 707. In other words, article 707 is not a provision thrown into the procedure that can or should receive an independent construction regardless of the other provisions. Then we have the matter in this shape: Appellant complies with article 707, and asks that his co-defendant be tried first, and that the testimony of said party is material for the defense of affiant, and affiant verily believes there is not sufficient evidence against the co-defendant to secure his conviction. The moment the district attorney dismissed the prosecution, that moment defendant was entitled to the testimony of the witness Sharp. Why not? There is no prosecution pending against him. Does the bare fact that he once had an indictment against him, and that he might be reindicted, force the state to the necessity of trying a party against whom there is not sufficient evidence? The affidavit for severance itself states there is not sufficient evidence against Sharp to convict. The state concedes that fact, and dismisses the case against co-defendant Sharp. We cannot presume that the officers of this state act corruptly, nor can we presume that the dismissal of a case would be done for other than proper purposes. But if it has been so done,—and there is nothing in the record here to show that fact,—then the witness is placed in as good position as appellant can demand under the laws of this state. The state made no contract not to prosecute him; and, if it did, this would be a contract the witness himself could insist upon being carried out in good faith. Appellant is not in the attitude to complain of the matter. Therefore the mere fact that the witness, at one time co-defendant with appellant, subsequent to the trial and conviction of appellant, was indicted, is no argument whatever in behalf of appellant; nor does it show that the right of severance has been violated. If appellant's position is correct, it would present a very anomalous condition. The record shows appellant was indicted with the witness Sharp for the theft of a yearling. The district attorney honestly states in writing to the court that he cannot secure a conviction against defendant Sharp. Upon this statement the court dismisses the case. This is clearly within the spirit and letter of article 709. Nor has appellant any right to complain in the premises, since he secured the testimony of the witness Sharp. Suppose it should develop after the trial of appellant that divers and sundry witnesses knew facts going to prove conclusively that co-defendant Sharp was guilty, could appellant in this case be heard to say that the state could not reindict Sharp? Certainly not. We know of no law that guaranties a defendant that any witness should have the ban of a prosecution altogether and absolutely removed from said witness. When a defendant is not guilty, or if the evidence is not sufficient to secure conviction, the district attorney is in honor and in law bound to dismiss the prosecution; and this right is not dependent or contingent upon any right of another or any one's interest; and, having availed himself of the provisions of the statute in doing this, the district judge and attorney are not to blame, nor can their action in the premises be called in question under the provisions of article 707, as appellant has attempted to do. It is seriously insisted that the district attorney, by this process, can hold the sword of Damocles over the head of the witness testifying, and thereby deprive appellant of the free and untrammeled testimony of the witness Sharp. This is no argument against the condition, nor is it a reason for the abrogation of article 709. If the witness Sharp has guilty knowledge of the theft of the yearling, either as principal or an accomplice, this guilty knowledge would probably deter him from telling the truth about the matter, whether indicted...