Jones v. State

• Decision Date: 29 January 1919
• Docket Number: (No. 5054.)
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

214 S.W. 322

JONES v. STATE.

(No. 5054.)

Court of Criminal Appeals of Texas.

January 29, 1919.

On Motion for Rehearing, June 25, 1919.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Felix R. Jones was convicted of murder, and appeals. Affirmed.

Terrell & Dashiell, of Silver City, N. M., and M. Scarbrough, Purser & Peden, and L. A. Dale, all of El Paso, for appellant.

Leigh Clark, Dist. Atty., E. B. Elfers, Asst. Dist. Atty., Moore & Harris, and Jackson, Isaacks & Lessing, all of El Paso, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This conviction is for murder. Appellant, Felix R. Jones, T. J. Coggin, and Millard Coggin were jointly indicted for the murder of Tom Lyons. A severance was ordered on application, and the order of separate trials of each of the indictees was made, whereby the trial of T. J. Coggin was to be had first, that of Millard Coggin second, and that of appellant Jones thereafter. The application for severance was upon the ground that it was believed that there was not evidence sufficient to convict either of the Coggins, and that their testimony would be material to the appellant. When Thomas Coggin's case was called for trial it was dismissed by the court upon the application of the prosecuting attorney, Coggin objecting and demanding a trial, and when the case of Millard Coggin was reached a like proceeding took place. Each of the Coggins was successively put upon the stand as witnesses for the defendant, and each of them declined to give testimony upon the ground that they anticipated a renewal of the prosecution against them, and that any evidence given in behalf of the appellant might be used against them in a trial of their own cases, and the court, recognizing their right under the Constitution to refuse to give evidence which might incriminate them, permitted them to be excused from testifying over the appellant's objection, he insisting that the state had no right to dismiss the indictments against them unless that at the same time they were granted immunity from further prosecution for the homicide, so that there would be no impediment to the court requiring them to testify in appellant's case. The refusal of the court to accede to this proposal, which was urged in an application to postpone, is made the basis of complaint by a proper bill of exceptions. The question is one upon which the decisions of this court are not in harmony. In Brown v. State, 42 Tex. Cr. R. 176, 58 S. W. 131, the correctness of appellant's contention was by a divided court denied. In that case the witness against whom the prosecution was dismissed testified in behalf of the accused, but the appellant therein complained that immunity was not given to the end that he might have had the testimony of the witness unaffected by the suspicion and the danger of subsequent prosecution. In Manor's Case, 45 Tex. Cr. R. 370, 77 S. W. 786, the joint indictee after the dismissal was immediately rearrested upon complaint charging him with the same offense, the complaint having been prepared before the dismissal was entered. The witness refused to testify, and the court held that the proceeding disclosed reversible error. To substantially the same effect is the ruling in Smith v. State, 55 Tex. Cr. R. 326, 16 S. W. 572. In that case and the Manor Case the court, judging from expressions therein, was controlled by the view that the dismissals were not made in good faith, and that by immediately following them with complaints there was displayed an attempt to evade the statute on the subject of severance, which the court was unwilling to sanction. In the Puryear Case, 50 Tex. Cr. R. 454, 98 S. W. 258, the court held that the dismissal of the indictment against the co-defendant was ineffectual to defeat the severance unless the dismissal was accompanied with immunity, the court expressly overruling the former decision in Brown v. State, 42 Tex. Cr. R. 176, 58 S. W. 131. In Puryear's Case the witness did not testify, though he was tendered to the appellant by the state; appellant declining to use him because of the failure of the state to grant him immunity. In Hobbs' Case, 53 Tex. Cr. R. 74, 112 S. W. 308, the Puryear Case was overruled, and the Brown Case reaffirmed. In that case the parties against whom the prosecution was dismissed were not called as witnesses by either the state or the defendant. The case of Hobbs v. State, supra, has been followed in Johnson v. State, 197 S. W. 996, and Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742. In Johnson's Case the witness was not used by either party, and no effort was made to use him by the defendant.

Article 791 (Code Cr. Proc.) Vernon's Crim. Stats. vol. 2, p. 721, is as follows:

"Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others."

This statute, in the opinion of the writer, declares the law applicable to the matter before us in terms quite definite. It furnishes a rule of evidence under which persons charged as principals are not competent witnesses for each other, and it defines the means whereby the competency may be restored. It is not the fact that they may have acted together as principals in the commission of an offense that disqualifies them, but it is the fact that they are charged with the commission of the same offense. It is the charge which disqualifies them, and in the language of the statute the dismissal of the charge will remove the disqualification. So the acquittal will remove it. When an order of severance is made the state has the option to proceed with the trial of the one first in order. If he is convicted, he is not a competent witness for his codefendant. If he is acquitted, he becomes a competent witness, because the charge against him is removed by the acquittal. The state by exercising its option to dismiss the prosecution removes it, and thereby destroys the disqualification of the witness. When the prosecution is dismissed, the status of the witness is the same as though he had never been charged with the offense. If he had been put upon the witness stand before he was charged he could, if conscious of guilt, or if he felt that there was suspicion against him, and that his testimony might be used to incriminate him, refuse to testify. There is nothing in the terms of the statute which destroys his privilege to refuse to testify upon dismissal after indictment, and nothing that we discern which imposes upon the state the obligation to grant him immunity as a condition precedent to dismissing the case. Underhill on Ev. § 70.

Article 37, C. C. P., establishes the right of the prosecuting officers to dismiss, with the consent of the court, and we find nothing in any other provision of the statute which modifies the terms upon which the dismissal may be entered defined in the article mentioned.

Article 727, C. C. P., does not, in the opinion of the writer, change the rule of evidence with reference to the competency of witnesses, which rule is declared in article 791, supra, but furnishes a method of procedure by which, when there are several charged with the same offense by separate indictments, and a severance is sought, the order of trial may be fixed. See Clark v. State, 81 Tex. Cr. R. 157, 194 S. W. 157, and Hobbs v. State, 53 Tex. Cr. R. 75, 112 S. W. 308.

Our opinion is that, when the prosecuting attorney, with the consent of the court, dismissed the indictment against the appellant's codefendants, there being nothing to establish bad faith in the proceeding, they pursued a course expressly authorized by the statutes of the state, and pursued a method prescribed thereby for restoring the competency of the Coggins as witnesses for the appellant, which competency had been impaired under the terms of the same statute when they were indicted.

There are bills relating to the special venire. The file mark and seal were left off the venire list, and with the court's permission the omission was supplied, and in the absence of evidence to the contrary we assume that the amendment was properly permitted. Washington v. State, 8 Tex. App. 377; Rodriguez v. State, 23 Tex. App. 503, 5 S. W. 255.

The return showed service on 201 veniremen; 123 of these were served by notice over telephone, 78 by written notice, 30 not served because names not found in directory, 3 dead, 5 in the army, 36 out of the city, and 224 moved and not found after diligent search, followed by the general statement that—

"Diligent search and inquiry to find and summon each of the veniremen herein returned unserved; has consulted the city directory, and persons who might know concerning the absent veniremen, but has been unable to find out further than above stated."

No evidence was introduced to disprove the correctness of the statement made, or to show that any of the unserved veniremen could have been found. The court knows judicially that El Paso, the place of the trial, is a large city situated on the border of the state; that veniremen are not listed by jury commissioners, but are listed by drawing from a wheel the names of taxpayers (see article 660, Code Cr. Proc. 1911), and in the course of the matter the judge stated that the proportion of jurors present was not unusual under existing conditions, which we infer related to the fact that the war affected the situation.

In the motion it is stated that, "Out of the 500 persons named in the venire list only 200 men were summoned, and approximately 100 have been excused for good cause," leaving only approximately 100 men from whom to select the jury, from which we judge (and we find nothing in the record to the contrary) that the veniremen who were summoned appeared, and either excused for good...