Bruton v. State

• Decision Date: 01 January 1858
• Citation: 21 Tex. 337
• Parties: WILEY BRUTON v. THE STATE.
• Court: Texas Supreme Court

21 Tex. 337

WILEY BRUTON

v.THE STATE.

Supreme Court of Texas.

1858.

Under art. 518, sec. 3, Code Criminal Procedure, which requires that on a first application for a continuance the defendant must state “the facts which are expected to be proved by the witness; and it must appear to the court that they are material,” a defendant will not be permitted to select a fact abstractly indifferent, in regard to which he finds the witnesses mistaken, and base an application for a continuance upon a necessity to disprove such fact, without stating facts sufficient to show that it is material for him to disprove it.

Where the testimony of an accomplice is corroborated in numerous important and material facts, the admission by the court of corroborating evidence in an immaterial part will not vitiate the verdict of the jury found upon the whole of the evidence.

In a case where corroborating evidence is required, it is always permissible to strengthen a witness' testimony by connected incidents showing its consistency and reasonableness.

Appeal from Harris. Tried below before Hon. P. W. Gray.

The appellant was indicted for the theft of a slave.

Upon the calling of the cause, the accused filed an affidavit for a continuance, in the following words:

“And now comes the defendant, Wiley P. Bruton, and says that he cannot go safely to trial in the above stated case for the want of the testimony of Christopher Foley and William G. Higgins, who reside in the county of Shelby and state of Texas. This affiant was indicted at this term of the court, and as soon after the finding of the indictment and service of a copy of the same upon affiant as he could see one of his attorneys, he informed him of the materiality of the testimony of said witnesses, and his attorneys thereupon immediately took the necessary steps to have the said witnesses present to testify in this case, by having an attachment issued to the county of Shelby to bring the said witnesses before this court to testify in this case; and this affiant says, that if there is apparent want of diligence in this case, it was caused by the fact that he has been confined in prison and his counsel have been attending upon court. This affiant says, that he can prove by the said witnesses, that he was in the state of Texas, several hundred miles from the city of New Orleans at the time when this affiant is said to have sold the negro said to have been stolen, said sale being charged to have been made in the city of New Orleans.

It is charged that this affiant stole and run off from the state of Texas a negro and sold him in the city of New Orleans, on or about the 25th July, 1857. Now this affiant can prove by the said witnesses, that at that time he was in the state of Texas, several hundred miles from the city of New Orleans, and that he could not have been in said city at the time alleged. Said witnesses are not absent by the procurement,” etc.

Motion for continuance overruled.

Dickson, a witness on the part of the state, testified that he had known the accused for six years; that he also knew the negro boy Frank charged to have been stolen by him; that on the 8th August last he had seen the boy in New Orleans; that some time in June last Bruton told him that the boy Frank that formerly belonged to John Kuykendall was runaway and was staying about Robert Kuykendall's place in this county, and that he wanted to fix to take him off and sell him. That something like a month afterwards Bruton took a bill of sale from his trunk at Kuykendall's house, and Kuykendall instructed the witness and Bruton to go to Richmond and have it proven up, and gave the witness ten dollars; that on the morning of 4th July last, witness and Bruton went to Richmond and went before a notary public, and the witness, under the name of John M. Haines, acknowledged the bill of sale and delivered it to Bruton, under the name of William Parker. The bill of sale from Haines to Parker, proven before Wm. E. Kendall, a notary public, was identified and read in evidence. Witness also signed the bill of sale as a witness by the name of James Brown. That witness and Bruton returned from Richmond on the same day; that in a day or two after they returned from Richmond Bruton left, but did not see him take the boy Frank; that Bruton told him he was going to take the boy away and sell him, and that preparations for the purpose were made, such as providing a horse and a mule, getting clothes, saddle bags, etc.; that he knew the horse and mule provided for Bruton and the boy to leave on, and has never seen them since; that before he saw Bruton after his return he saw a mulatto girl at Mrs. McDow's, which Bruton told him he had brought back, and that he had swapped the boy Frank for her.

Kendall testified that he was a notary public in the town of Richmond, and that he recognized the witness Dickson and Bruton as the persons who appeared before him about the 1st July, one representing himself as John M. Haines and the other as William Parker. He also recognized the bill of sale and his seal and signature thereto.

Edward Francis, a son of Mrs. McDow, where witness Dickson lived, corroborated the statements of Dickson in reference to the preparations for Bruton to leave with the boy Frank, and as to the bringing back by Bruton of a mulatto girl.

Mrs. McDow, a witness, also corroborated in several particulars the evidence of Dickson.

Dickson took the mulatto girl through New Orleans, where it appears by his testimony he arrived about 8th August, and thence went to Shreveport, where he was arrested. Among other papers found upon his person was a letter of introduction from Taylor, Hadden & Co. to Z. H. Trudeau, dated August 8, 1857, which was offered in evidence to corroborate the statements of Dickson to the extent of showing that on that day he was in New Orleans, to which objection was made and overruled.

The defendant was then permitted to give in evidence the facts stated in his affidavit for continuance, not only that the witnesses would swear to the facts if present, but that they were absolutely true.

Verdict of guilty. Motion for new trial overruled.

The appellant assigns the following errors:

1st. The court erred in overruling defendant's motion for a continuance.

2d. The court erred in permitting the state to corroborate the accomplice Dickson in statements not material to the issue in the case.

3d. The court erred in receiving other evidence objected to by the accused.

4th. The court erred in its charge to the jury.

5th. The verdict of the jury was contrary to the law and the evidence.

6th. The court erred in overruling the motion for a new trial.

R. K. Cage, for appellant. The judge says, in his charge: “It did not appear to the court that the matters to be proved by the witnesses were material to the issue presented by the indictment.” The application for a continuance, among other things, states, substantially, that the witnesses would prove that the accused was in the state of Texas, several hundred miles from the city of New Orleans, upon a certain day and date, when defendant was said to have stolen the negro and to have sold him in New Orleans.

Now the indictment is for negro stealing. Complicated with the statement afloat in the community, and perhaps from the lips of the witnesses who will be brought to sustain the indictment, is the charge that the accused committed the theft and sold the stolen or missing negro in the city of New Orleans, on or about the day mentioned in his affidavit. The judge, upon a first application for a continuance, could only look to the probable connection of such testimony with the case. If it related to the case, and was material in that relation, he had no discretion but to continue the case. 7 Cow. 368.

Indictments should be, and generally are, summary and brief in the description of the offense charged. They do not go into detail or circumstance. Evidence is copious, and in this case almost wholly circumstantial. The accused took the only known method of bringing before the court a knowledge of the materiality of the witnesses on account of whose absence he desired a postponement of the trial. He showed to the court the probable tenor of the evidence that would be adduced against him. That testimony he alleged would be met and contradicted in some important particulars (which he set forth) by the absent witnesses. Hyde v. The State, 16 Tex. 445.

When a first application for a continuance appears upon its face to be sufficient, the court cannot go into an investigation of the charge, and apply considerations deducible from the evidence to the question of continuance. The law has regulated the time when a motion of this kind shall be made, as well as its forms and requisites, and these being complied with leave the judge without discretion. 10 Tex. 283.

But it may be said that the facts stated in the affidavit were placed before the jury as evidence in the case, and as absolutely true. If there was error in refusing the continuance, this did not cure that error. This evidence was not obtained by any method sanctioned by the law. The counsel for the accused placed no value upon it, and only accepted it at the suggestion of the judge, under the belief that it would not prejudice the cause of his client. The course pursued in this case has no precedent. The question was not progressive, but had already been decided by the court, and the counsel for the accused, in acquiescing in the suggestions of the court, expressly reserved the benefit of his exception taken to the ruling of the court when the trial was first ordered to proceed.

In the case of Vermilyea v. The People, the judge ordered a specification of what the absent witness would prove before the trial was allowed to proceed, and yet the supreme court of New York said that it was error to refuse a continuance, and that a new trial should be granted.

This court, in the case of Hyde v. The State,...