Downs v. State

• Decision Date: 24 February 1937
• Docket Number: No. 18679.,18679.
• Citation: 104 S.W.2d 503
• Parties: DOWNS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 503

104 S.W.2d 503

DOWNS v. STATE.

No. 18679.

Court of Criminal Appeals of Texas.

February 24, 1937.

State's Rehearing Denied April 28, 1937.

Commissioners' Decision.

Appeal from District Court, Panola County; T. O. Davis, Judge.

Allan Downs was convicted of theft of cattle, and he appeals.

Reversed and cause remanded.

Long & Strong and Sam T. Holt, all of Carthage, and Ghent Sanderford, of Austin, for appellant.

Wardlow Lane, Dist. Atty., of Center, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

The state relied upon circumstantial evidence. Appellant was found in possession of a cow which belonged to Bernard Redmond. Mr. Redmond testified that the animal had been recently taken from its accustomed range. Appellant testified that he got the cow from Gus Booth in exchange for some furniture. Testifying for the state, Booth denied that he had traded the animal to appellant. The state also introduced a witness who gave testimony showing that appellant had made inconsistent declarations as to his acquisition of the cow.

The evidence is deemed sufficient to support a conviction for theft.

It is shown in bill of exception No. 1 that at the beginning of the trial appellant invoked the rule. The witnesses who had been summoned were sworn and required to remain out of the courtroom. Gus Booth, who had not been summoned as a witness, remained in the courtroom and heard all of the witnesses testify. In the development of the state's case in chief, witnesses for the state testified that appellant, while in possession of the stolen cow, had stated to them that he had bought her from Gus Booth. We quote from the testimony of one of the witnesses as follows: "Allan (appellant) and myself were present there when we had that conversation. I went to talk with him with reference to the yearling and he told me he had bought the yearling and bought it from Gus Booth and had paid him with furniture. He gave me a description of this furniture that he traded to Mr. Booth. He told me that he had traded him a stove and seems like a bedstead and probably some chairs."

After the state had rested, the district attorney asked permission of the court to reopen the case for the purpose of introducing Gus Booth as a witness. The request being granted, Booth took the stand and denied that he had traded the stolen animal to appellant. He admitted that he had some furniture in his possession that appellant had owned. He testified, however, that he had paid appellant $6.00 for the furniture. Appellant then took the stand and testified that he had traded Booth a bedstead, mattress, cook stove, and other furniture for the stolen animal. Upon learning that Booth had remained in the courtroom and heard all the witnesses testify, appellant called the trial court's attention to the fact that the rule had been invoked and requested that the jury be instructed to disregard the testimony of Booth. The motion was overruled.

Article 644, C.C.P. (Vernon's Ann. C.C. P.), reads as follows: "At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under rule."

In Branch's Ann. P.C., § 344, it is said: "The admissibility of witnesses who have violated the rule, or who have not been placed under the rule, is a matter addressed to the sound discretion of the court, and, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised."

In the present instance, we think appellant's motion to exclude the testimony of the witness should have been sustained. Manifestly, counsel for the state was aware that witnesses for the state would testify that appellant had stated to them that he had acquired the stolen animal from Booth. Under the circumstances, the witness should have been placed under the rule with the other witnesses at the beginning of the trial. However, he remained in the courtroom and heard the state's witnesses testify concerning appellant's claim that he (Booth) traded the animal in question to him for furniture. The state was then permitted to call the witness to combat appellant's affirmative defense. His testimony concerned the main facts around which the controversy turned. That his testimony was calculated to injure the appellant is manifest. Under the circumstances, we are of opinion that the procedure was not conducive to a fair trial. See Freddy v. State, 89 Tex. Cr.R. 53, 229 S.W. 533, and Tinker v. State, 95 Tex.Cr.R. 143, 253 S.W. 531.

The judgment is reversed and the cause remanded.

PER CURIAM.

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.

LATTIMORE, Judge (dissenting).

This case is being reversed upon the sole ground of abuse of his discretion by the trial court in refusing to strike out the testimony of witness Booth, after it had been admitted without objection, under circumstances clearly demonstrating that, if there was possible ground of objection, same was known to appellant at the time the testimony was introduced, and no specific objection was made known in the motion to exclude, which embraced much testimony given by the witness clearly admissible. I cannot agree to such reversal, and must record my dissent.

That what I have said it true, and not just my opinion, will appear from a recital of the following facts: Booth and appellant were jointly indicted for the offense here involved. When the case was called for trial, each asked a severance. The court granted same and put appellant to trial. Appellant asked the rule as to witnesses. Those called were sworn and put under the rule. Booth naturally was not called, was not sworn, and, at least for a part of the time while the state's testimony was being introduced, he was in the courtroom. Whose testimony he heard and what he heard was never developed.

When the state rested its case, appellant's counsel asked for time for consultation. When they came back, what occurred is here quoted from the uncontested qualification of the court to appellant's bill of exceptions No. 1: "The district attorney informed the court that he wished to offer Gus Booth as a witness; the court inquired of the district attorney whether he wished to re-open the case, and he replied in the affirmative, and the court indicated that he might do so, whereupon the defendant's attorneys stated: To which we except, and note our exception, and no other objection was then made. The witness testified on both direct, and cross examination."

No bill of exceptions was taken to Booth's testimony. The court adjourned for the noon recess. When court reconvened, defense counsel had Booth recalled, and had him testify as follows: "I was testifying just before noon in this case, I was on the stand just before dinner. Before I took the stand I had been sitting back there in the court room, and heard the other witnesses testify. I think I might have been in here a little bit."

The jury were not retired. Booth was not asked either in or out of the presence of the jury if he heard any witness testify to any statement made by appellant in effect that he traded furniture to Booth for the alleged stolen animal. The qualification to the bill above quoted sets out what was said, and all that was then said. At this point one of defense counsel said: "As far as I am concerned, if the court please, I did not know that Mr. Booth was in the court room and heard the testimony, and we had asked for the rule, which was invoked, and we think the jury ought to be instructed not to consider his testimony."

Other counsel for the defense were present but made no statement, nor did appellant himself, regarding their knowledge of the presence of Booth in the courtroom during the morning. Booth was not asked how much testimony he heard, nor what he heard any witness say. Said witness and appellant were well known to each other.

No effort was made to find out when Booth or some one for him disclosed to the state his willingness to waive his right not to testify The motion to exclude Booth's testimony was overruled under the circumstances and upon the facts above set out.

Booth's testimony deemed objectionable is not even set out in the motion to exclude same; nor in the bill of exceptions taken to the refusal of the court to exclude. All this makes the reversal, for the reason above stated, without precedent and against all precedents.

I might here further add, so as that what discussion I indulge may be applied to the whole case, that in appellant's fourth bill of exceptions he sets out Booth's testimony on direct examination and wholly leaves out of the bill more than two pages of the cross-examination of the witness, which bill he presents to the court and asks the court to approve as presenting his objection to the testimony, but the court appends to said bill the same qualification as is appended to bill of exceptions No. 1, which plainly shows that no objection was made to the testimony of the witness.

Reference to said bill of exceptions shows that the major part of Booth's testimony consisted of matters about which no other witness had given testimony, and which testimony was inherently material to the state's case. I observe that no separate motion was made to exclude those parts of Booth's testimony claimed to be related to what may have taken place between Booth and appellant. Statements concerning what appellant had told witnesses about having traded for the alleged stolen animal from Booth had been made by two state's witnesses on their cross-examination. Manifestly this makes clear the reason why appellant did not bring...