Phillips v. State

• Decision Date: 26 February 1896
• Citation: 34 S.W. 272
• Parties: PHILLIPS v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 272

PHILLIPS v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1896.

Appeal from district court, Tarrant county; S. P. Greene, Judge.

John Phillips was convicted of robbery, and appeals. Reversed.

Furman & Bowlin, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of robbing a train. The robbery was perpetrated by three persons, and appellant (John Phillips), John Ward, and George Sullivan were charged with the robbery. John Ward was indicted and tried and convicted. The record is silent as to Sullivan. Ward was indicted in a separate bill from Phillips. Ward's case stood on the docket before the case against appellant. The motion to quash the indictment was not well taken. See Sargent v. State (decided at Tyler term, 1895) 33 S. W. 364.

Mrs. Phillips was a witness for Ward and her husband, John Phillips. She was in attendance upon the court and testified in the Ward case. On the next day she was taken sick with measles, and at the time was in an advanced state of pregnancy. At the request of the proprietor of the hotel at which she was stopping, she was taken to her father's, about 12 miles distant; and she there grew worse with measles, and 8 or 10 days afterwards gave birth to a child. She had not been subpœnaed, either by the state or the appellant, but was present as a witness, as above stated. When this case was called, appellant moved for a continuance on account of the absence of the testimony of Mrs. Phillips, setting out all the facts in regard to her sickness. Three affidavits were presented to the court in behalf of the state, the object of which was to show that Mrs. Phillips was able to attend and be present as a witness on the trial. These affidavits are not at all in conflict with those which show that she was sick. In fact, this question, whether she was sick or not, is placed beyond any sort of doubt. Now, the court seems to have held that, because she had not been subpœnaed, the appellant was not entitled to a continuance. We cannot agree to such a rigid rule. We are not to be understood as holding that the accused should not procure process, and have the same served, for his witnesses, and especially his wife. But under the peculiar circumstances of this case, there being no evidence tending to show that the witness was acting in bad faith, or had left at the instigation of her husband, we think the rule too rigid, when applied to the facts in this case. Concede, however, that the court acted properly in overruling the motion because the witness was not subpœnaed; afterwards a subpœna was served upon the witness in ample time for her to attend court, but, she being very sick, it was impossible for her to do so with safety to her life. It may be insisted that, as the court eliminated a part of the testimony of Harden, — that which relates to what the wife said and did, — while appellant was in jail, therefore there was no injury in refusing the continuance for the testimony of the wife. This may be true, but the application sets up, of course, what appellant expects to prove by his wife; and in the application we find that he expects to prove very important matters, separate and distinct from the conversation, if any, with Harden. We are of opinion that the court should have granted the continuance.

The state, over the objection of the appellant, proved by Harden what occurred and was said to him by the appellant while in jail, — in fact, proved a detailed confession of the robbery. Appellant had not been cautioned. In the explanation to the bill of exception objecting to this testimony, the court says that appellant had been a witness in the case, and testified in his own behalf and had testified on cross-examination about the matters inquired about, as shown by the statement of facts. The testimony of Harden was admitted upon the ground that the appellant had testified in his own behalf, and that his attention had been called to the facts...