Medford v. State

• Decision Date: 16 March 1921
• Docket Number: (No. 5846.)
• Citation: 229 S.W. 504
• Parties: MEDFORD v. STATE.
• Court: Texas Court of Criminal Appeals

229 S.W. 504

MEDFORD v. STATE.

(No. 5846.)

Court of Criminal Appeals of Texas.

March 16, 1921.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

I. W. Medford was convicted of murder, and appeals. Reversed and remanded.

McClellan & McClellan, of Gatesville, A. R. Eidson, of Hamilton, and Mears & Watkins, of Gatesville, for appellant.

H. E. Bell, of Gatesville, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, P. J.

Judgment is for murder. Punishment fixed at confinement in the penitentiary for 10 years.

R. J. Pieper was shot and killed by appellant. The facts are stated in the report of the former appeal. Medford v. State, 216 S. W. 175.

Shots were exchanged between the deceased and the appellant, the former using a shotgun and the latter a rifle. The occurrence took place in the presence of the members of the family of the parties respectively. The version given by the state's witnesses materially differs from that of the appellant testifying in his own behalf. On two previous trials, resulting more favorably to the appellant than the present one, his wife and son testified.

A continuance was sought because of the absence of these two witnesses. The sufficiency of the application as to diligence and materiality is not open to question. It was the first application, the issues were sharply drawn. There is no question but what the appellant's wife and son were eyewitnesses, and no ground developed upon which the court would have been authorized, as a matter of law, to treat the truth of their testimony as improbable. To avoid the continuance the state's counsel offered to permit the use of the report of the testimony of the witnesses upon the former trial which was the same as that set out in the application. The state's counsel did not offer to admit the truth of the testimony, but declined to do so. The appellant refused to waive his continuance, and the court overruled his motion.

An application for a continuance because of the absence of witnesses, which complies with the statute and shows such reason for continuance or postponement as the trial court would be bound to grant, cannot be defeated by an admission upon the part of the state that the absent witnesses named in the application would, if present, give the testimony set out in the application. To have the effect desired, it would be necessary that the admission embrace not only the fact that the witness would give the testimony, but that the facts were true. This is the practice in other jurisdictions. Ruling Case Law, vol. 6, p. 569; Madison v. State, 6 Okl. Cr. 356, 118 Pac. 617, Ann. Cas 1913C, 484, and note. The rule received the sanction of the Supreme Court of this state in the early case of Hyde v. State, 16 Tex. 458, 67 Am. Dec. 630, and has been observed, so far as we are aware, without departure, by that court and this one. Skaro v. State, 43 Tex. 88; Hackett v. State, 13 Tex. App. 412; Francis v. State, 55 S. W. 489; Purvis v. State, 52 Tex. Cr. R. 316, 106 S. W. 355; Davis v. State, 65 Tex. Cr. R. 429, 144 S. W. 939; Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614; Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1097; Branch's Ann. Penal Code, § 325.

In cross-examination of the appellant, the state's counsel asked some leading questions assuming that certain evidence given by the state correctly related the facts. In reply the appellant denied the truth and stated:

"My wife testified she didn't, and my son testified he didn't."

The counsel for the state retorted:

"We object to what he testified about what his wife and son testified. Their testimony on a former trial is in the statement of facts, and we are willing that it all be read to the jury."

The appellant's counsel stated:

"His inference is plain before the jury that we have some fear of that testimony. The court knows our position, that we are entitled to be confronted with our witnesses. We object to his insinuating what would be contrary to truth."

The court asked the state's counsel if he intended to offer to permit the use of the written testimony before the jury and received an affirmative reply, and informed the counsel for the appellant, in the absence of the jury, that, in the event he failed to read the testimony, he would permit comment upon such failure in argument. Appellant, protesting the ruling and asserting his continued reliance upon his motion for continuance, introduced the written testimony of the absent witnesses. His conduct in so doing is relied upon by the state as a waiver of his motion for a continuance, to which he would otherwise have been entitled.

We are of the opinion that the sanction of this view would nullify the rule to which we have referred. The Constitution provides that one accused of crime "shall be confronted with the witnesses against him" and "shall have compulsory process for witnesses in his favor." Availing himself to these rights, he brought himself in the present instance within the requirements of the law which required the court to defer the trial looking to securing the witnesses. The law pointed out the character of the admission that the state must make to deprive the appellant of the right to further time to secure testimony in his favor, namely, the admission of the truth of the absent testimony binding to a degree that it might not be controverted. Davis v. State, 52 Tex. Cr. R. 333, 107 S. W. 855; Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614.

The state's counsel having without qualification declared that the appellant might use the absent testimony, and indicated with the sanction of the court that his failure to do so might be used against him in argument, appellant's rights were not prejudiced by using the testimony thus made available and thereby endeavoring to minimize or obviate the erroneous adverse ruling of the court. It has been often said that comment upon the failure of the accused to use testimony available to him, but not to the state, was permissible. Mercer v. State, 17 Tex. App. 466; Branch's Ann. Tex. Penal Code, § 373, and cases listed. Whether the appellant was obliged to use the absent testimony under the circumstances or not, it does not follow that by making use of the testimony he abandoned his right to a continuance of the case. An analogous case is Adams v. State, 19 Tex. App. 1, wherein it is held that the right to continue was not waived by the refusal of the accused to accompany the jury to the home of the absent witness, that her testimony might be given. A question similar to that in hand was before the court in the case of McMillan v. State, 65 Tex. Cr. R. 319, 143 S. W. 1174. On that occasion the state offered in evidence the stenographic report of the testimony of a witness. It was excluded upon the appellant's objection and comment made upon it in argument. Presiding Judge Davidson disposed of the matter in the following language:

"This should not have occurred, and upon another trial this should be avoided. The court had overruled the application for a continuance for Mr. Brown, and appellant assigns that as error and reserved a bill of exceptions. The state had no right to offer the stenographic report of the testimony of the absent witness either to defeat the application or for any other purpose before the jury or the court, unless he had first admitted that the facts stated in the application were true."

The state introduced the testimony...