Royens v. State

• Decision Date: 24 March 1894
• Parties: ROYENS v. STATE.
• Court: Texas Court of Criminal Appeals

25 S.W. 786

ROYENS v. STATE.

Court of Criminal Appeals of Texas.

March 24, 1894.

Appeal from district court, Travis county; James H. Robertson, Judge.

Francisco Royens was tried for murder in the first degree. From a judgment of conviction, defendant appeals. Affirmed.

Hugh L. Davis, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

The conviction in this case was of murder in the first degree, and the punishment assessed was death. Ferma Lerma, Manueal Aguirre, and Clem King, having been summoned as witnesses by the state, were present at the trial. The defendant moved the court to require the prosecution to place them on the stand and elicit their testimony. This was refused, and an exception reserved. The state's case was made out by the testimony of eyewitnesses, and it is therefore unnecessary to discuss the rule laid down in Thompson's Case, 30 Tex. App. 325, 17 S. W. 448, relied on by defendant. That case is authority to the extent that it holds the state should prove the guilt of the accused by positive, rather than by circumstantial, evidence. It in no sense sustains the position of appellant that all eyewitnesses to a homicide are required to be placed on the stand and examined by the state. In fact, we do not understand that such a rule of practice has ever obtained in this state, nor that it would be a correct one under our procedure. In the case of Wheelis v. State it was said, Judge Hurt delivering the opinion of the court: "It seems from the brief of the counsel that the Hunnicutt opinion (20 Tex. App. 632) is so construed as to require the state to introduce all the testimony of witnesses to the transaction in all cases. My brethren do not, nor did they in that case intend to, convey any such idea. It is expressly stated in that case, and in the Phillips Case (22 Tex. App. 139, 2 S. W. 601), that this matter is in the sound discretion of the court. That there may be cases in which the rule would not apply is clearly stated. We advise counsel to re-read the Hunnicutt Case, and it will be seen that no general rule is attempted to be stated." 23 Tex. App. 238, 5 S. W. 224. In Gibson's Case, 23 Tex. App. 423, 5 S. W. 314, the same court again announced the same doctrine in the following language: "Neither the Hunnicutt (20 Tex. App. 632) nor the Phillips (22 Tex. App. 139, 2 S. W. 601) Case contains the doctrine that in all cases, and under all circumstances, must the state place upon the stand each and every eyewitness to the transaction." This doctrine has again been fully reaffirmed by this court in Mayes v. State, 24 S. W. 421, and in Jackson v. State (recently decided at this term) 24 S. W. 896. At an early date, at common law, the rule of practice was as contended for by appellant. This grew out of the fact that under that system the accused had no right to compulsory process in capital cases, and because "the prisoner was not even permitted to call witnesses, though present, but the jury were to decide on his guilt or innocence, according to their judgment, upon the evidence offered in support of the prosecution." 1 Chit, Cr. Law, 624, 625. And while, later on, the practice of rejecting evidence for the accused was abolished, yet the witnesses on his behalf "were merely examined without any particular obligation, and therefore obtained but little credit with the jury." Id. By reason of the fact that they were not sworn they did not, and could not, obtain the same degree of credit as those introduced in support of the prosecution. This unjust custom rested upon practice, and not upon law. It certainly could not be held to be just and reasonable, and was entirely done away with by an act of parliament. Id. 615, and notes. It then became the settled law of England that no witness could be examined in any criminal proceeding except upon oath. "And this rule is so universal in its operation that a peer cannot be examined upon his honor, but must take the same oath with any other individual." Id. The reason for the rule having ceased, it was but a natural and reasonable sequence that the rule itself should pass away. Whether it did or not, or whatever may be the common-law rule, we do not think it ever applied in this state, for with us the defendant is, and always has been, entitled to compulsory process for his witnesses, and can take the depositions of witnesses residing in other jurisdictions, — a right denied the state. These witnesses are required to give their testimony under oath, and, in so far as the law can do so, are placed upon the same plane with the witnesses for the prosecution. In the trial the accused has at least...