King v. State

• Decision Date: 26 February 1896
• Citation: 34 S.W. 282
• Parties: KING v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 282

KING v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1896.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

William King was convicted of a crime, and appeals. Reversed.

Thomas & Turney and Miller & Williams, for appellant. Stillwell H. Russell and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of abortion, and his punishment assessed at five years in the penitentiary, and he appeals.

After the state had announced "Ready for trial," and before the defendant had announced, he presented to the court the following motion:

"Now comes the defendant, William King, and, being duly sworn, on oath, shows to the court: That one T. B. Herring stands indicted in this court, in case No. 578, with an offense growing out of the same transaction which is the basis of the indictment herein against this defendant, and that the testimony of the said T. B. Herring is material for the defense of this affiant, and that this affiant verily believes there is not sufficient evidence against said T. B. Herring to secure his conviction. Wherefore defendant prays that said T. B. Herring be first placed upon trial, that this defendant may have the benefit of his testimony. That said case is No. 578 against T. B. Herring, and both growing out of the same transaction. [Signed] W. E. King.

"Sworn to and subscribed before me this March 27th, 1895. J. H. Stewart, Clerk, by I. A. Moore, Deputy.

"Filed March 27th, 1895. J. H. Stewart, Clerk, by I. A. Moore, Deputy."

The court overruled the motion, to which appellant excepted, and reserved his bill of exception. To the bill the learned judge appends the following explanation as a reason why he did not grant the motion:

"The defendant, T. B. Herring, was not indicted as a principal, but as an accomplice, to the abortion charged against William King, and with this qualification the above bill is signed; and the court's attention is also called to the evidence in the case as to the merits of this bill. [Signed] Chas. F. Clint, Judge," etc.

The last act upon this subject is the Act of 1887, p. 33, art. 669a, as follows: "Where two or more defendants are prosecuted for an offense growing out of the same transaction by separate indictment, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted; and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties whose evidence is desired, to secure his or their conviction, then such party or parties for whose evidence said affidavit is made, shall be first tried, and in the event that two or more defendants make such an affidavit and cannot agree as to their order of trial, then the presiding judge shall direct the order in which the defendants shall be tried. Provided that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party." Under the law as it existed before this act, the defendant would have a right to ask for a severance, if jointly indicted, or if indicted by separate bill, and have the further right, by the proper affidavit, to have his codefendant first tried; and for this purpose, whether jointly or separately indicted, they are codefendants. But the last act settles this question beyond any controversy. Whether indicted as a principal or as an accomplice, if the accomplice is guilty of abortion, they would both be guilty of the same offense. This view of the question is settled by article 91 of the Penal Code, which reads: "Persons charged as principals, accomplices or accessories, whether in the same indictment or by different indictments, cannot be introduced as witnesses for one another, but they may claim a severance, and if any one or more be acquitted, they may testify in behalf of the others." Here is a provision against their testimony before acquittal or nolle prosequi, and a provision that they may testify upon the severance; and this provision applies to all persons charged, whether as principals, accomplices or accessories, and whether charged in the same indictment, or in separate bills. If they cannot testify for one another, it would not be just to refuse them the right to sever, and have the codefendant tried and acquitted in order to make him a witness. In Willey v. State, 22 Tex. App. 408, 3 S. W. 570, the court below refused the severance, giving as a reason that he was not satisfied that it was a matter of absolute right that the defendants had a right to sever. In reply to this, Presiding Judge White says "that, in our opinion, there can be no question as to the intention of the legislature to confer upon such defendants the right to demand a...