Price v. State

• Decision Date: 05 May 1897
• Citation: 40 S.W. 596
• Parties: PRICE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 596

40 S.W. 596

PRICE v. STATE.

Court of Criminal Appeals of Texas.

May 5, 1897.

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

George H. Price was convicted of embezzlement, and appeals. Reversed.

Miller & Williams, S. H. Russell, and Kearby & Muse, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of embezzlement, and his punishment assessed at confinement in the penitentiary for two years; hence this appeal.

The indictment contains five counts. Appellant was prosecuted to conviction under the third count, which charged him as principal with embezzling 22 bales of cotton, belonging to White & Co. This count charges that he was the bailee of the property, and that White & Co. were the bailors. The case being called for trial, the state announced ready; and appellant, being called upon for announcement, presented and read to the court the following affidavit and motion: "Now comes the defendant, Geo. H. Price, and says, under oath, that one W. R. Clark, one L. F. Saucer, one C. A. Dawson, and this defendant each and all stand indicted separately in this honorable court for an offense and for offenses growing out of the same transaction, to wit, theft and embezzlement of cotton. This defendant further says that the indictment aforesaid, against the said W. R. Clark, is numbered 1,529 on your honor's docket; that said indictment against the said L. F. Saucer is numbered 1,525 on said docket; that said indictment against the said C. A. Dawson is numbered 1,471 on said docket,—all of which said indictments are here referred to, and made a part hereof. This defendant further says that the evidence of said L. F. Saucer is material for the defense of this affiant, and this affiant verily believes that there is not sufficient evidence against the said L. F. Saucer to secure his (the said L. F. Saucer's) conviction in said cause. Wherefore he asks that said Saucer be first tried. [Signed] G. H. Price." This affidavit was sworn to before the district clerk. This application to have Saucer first tried was overruled by the court, and appellant reserved his bill of exceptions. He was then ordered to announce ready for trial, and excepted. The court appends the following reasons for refusing to grant the application to sever, and for Saucer to be first tried on the other bills: "The above is signed with this explanation: The state was under contract, as stated by the county attorney, to release L. F. Saucer after all other defendants had been tried, provided that said Saucer had in the meantime testified to the whole truth as a witness in the state's behalf on the trial of each of said cases against Dawson, Price, and Clark, as the state might see proper to use him (the said Saucer) in. And, for the purpose of enabling the said Saucer and the state to carry out said agreement, the said Saucer's attorney and the county attorney asked to continue Saucer's cases, and the court continued said Saucer's cases before acting on defendant Price's affidavit to put Saucer first on trial. To have granted Price's said affidavit or the prayer thereof would have operated a continuance of his case, on the above ground." After the state made its announcement of ready for trial, and after the court had overruled his affidavit to have said Saucer first tried, and before the defendant had made his announcement of ready, he presented to the court his second application for a continuance or postponement of said case. This application was overruled. The application for continuance was for the want of the testimony of L. F. Saucer. It appears that Saucer had been a witness for the state against C. A. Dawson, charged with embezzlement, theft, etc., growing out of the same transaction. Saucer's testimony in the Dawson Case is very favorable, indeed, to the appellant, Price. In the application for a continuance the court was also requested to nol. pros. the cases as to Saucer, then pending. Saucer was not introduced as a witness for the state in this case. The defendant proposed to introduce him, but was denied the right. The defendant asked the state to introduce him, which was refused. It is not questioned but that Saucer was indicted for an offense growing out of the same transaction as the prosecution in this case.

Article 707, Code Cr. Proc., provides: "Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, 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, such party or parties for whose evidence said affidavit is made shall first be tried; and in the event that two or more defendants make such 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." Article 771, Id., provides: "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." In this case...