Saucier v. State, 24647

• Decision Date: 22 February 1950
• Docket Number: No. 24647,24647
• Citation: 156 Tex.Crim. 301,235 S.W.2d 903
• Parties: SAUCIER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 903

235 S.W.2d 903

156 Tex.Crim. 301

SAUCIER v. STATE.

No. 24647.

Court of Criminal Appeals of Texas.

Feb. 22, 1950.

Rehearing Denied Jan. 31, 1951.

W. W. Ballard, Wichita Falls (Eugene Sherrod, Jr., Wichita Falls, Joe Cleveland, Bowie, on appeal only), for appellant.

Clyde Fillmore, Dist. Atty., Wichita Falls, George W. Anderson, Jr., Asst. Dist. Atty., Wichita Falls, Alan B. Haley, Asst. Dist. Atty., Wichita Falls, George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant and David Beck were charged by indictment with the unlawful killing of Thomas Houston Gibbons by 'stomping and kicking the said Thomas Houston Gibbons with their feet, and by hitting the said Thomas Houston Gibbons with their fists, and by choking the said Thomas Houston Gibbons with their hands.'

The appellant was placed upon his trial alone, and by the jury assessed the death penalty.

Upon the calling of this cause, appellant moved the court in writing to grant a severance herein and to place David Beck upon his trial first. This motion for a severance was granted, and David Beck assented to the court placing him on trial first. Whereupon the District Attorney filed his motion in writing, setting forth the allegation that there was not sufficient evidence to convict David Beck, and moved the court to dismiss the indictment relative to David Beck in order that his testimony could be made available to the appellant. This motion was granted by the court and such indictment as to David Beck was dismissed, and he was discharged thereunder. On May 19, 1949, a jury having been theretofore empaneled, this trial was begun as to Saucier alone.

Bill of Exception No. 1 complains of the action of the trial court in dismissing the indictment against David Beck, thus rendering him available as a competent witness for appellant herein and removing from his testimony the prohibitory Article 711, C.C.P. Appellant and David Beck were represented by the same attorney, and when Beck was placed upon the witness stand by such attorney, he refused to testify, giving as his reason therefor that, 'I have to see proof that they will release me. * * * I thought it was a trick, because he tricked us. * * * Q. Now, if they dismiss that indictment against you, you will testify for T. C. Saucier? A. If they give me proof in writing that they won't have no charges again me afterwards, that they won't file no charges agin me.' He further testified that Mr. Ballard (who was the attorney for both appellant and David Beck), told him to say that. After further questioning, this attorney told Beck as follows: 'Now I tell you as your attorney at this moment if that indictment is dismissed, that you are a free man and you can walk out of this court room right now if you care to go. * * * Yes, sir, there are no charges against you. * * * I advise you as your attorney there is no charges against you.'

Much testimony follows in the bill, but the main fact remains that the indictment against Beck had been dismissed by proper order of the court; and it is also evident that by the advice of this attorney, Beck refused to testify and did not testify relative to the facts herein. The grounds of such refusal seemed to be a fear of lack of good faith upon the part of the District Attorney; and we find no evidence of a fear of self-incrimination. In truth, Beck gave answers to questions as follows:

'Q. Yet you refuse to testify for him in view of the fact, or because you think that later on criminal charges may be filed? A. Yes, sir.

'Q. Is it because you think what you will testify to from that witness stand will incriminate you so charges will have to be filed again? A. No, sir.'

In other words, the whole reason for the refusal of this witness to testify was because he had been led to believe that this dismissal of his case was but a subterfuge and a trick; and that he would again be indicted after he had testified for the appellant.

This Bill of Exception No. 1 consists of 64 pages in question and answer form, certified as necessary by the trial judge, and continues in showing that upon such refusal by the witness, his attorney informed him as follows: 'Now I tell you as your attorney at this moment if that indictment is dismissed, that you are a free man and you can walk out of this court room right now if you care to go. A. I can go?

'Q. Yes, sir, there are no charges against you. A. Now?

'Q. If he sees fit to let you go, and the Sheriff of Wichita County. I advise you as your attorney there is no charges against you.'

'Q. Will you testify for the defendant? A. No.'

It is shown by the trial conrt's qualification that the witness was acting as though he intended to leave the stand, and the court room, and the court turned to the sheriff, who was nearby, and said: 'Hold that man as a material witness.' A deputy sheriff then took Beck into custody; the sheriff filed a complaint against him for this murder, and he was again placed in jail.

All these matters were offered on the ground of good faith in such dismissal of the original charge against Beck. This witness had refused to testify, evidently on the advice of his attorney, who also represented appellant, not on the ground of self-incrimination, but only because he was not promised perpetual immunity for the death of Mr. Gibbons.

It was said by this court in the case of Brown v. State, 42 Tex.Cr.R. 176, 58 S.W. 131, 133, in commenting upon a similar case: 'Whenever the application for severance is filed, two alternatives are open,--grant the request, else dismiss the prosecution, so appellant can secure the testimony. But certainly such dismissal must not have coupled with it a contract never, under any circumstances or conditions, to reindict the party whose case is dismissed. The party whose case is dismissed cannot ask this right.'

Judge Henderson filed a dissenting opinion therein. Afterwards, in the case of Puryear v. State, 50 Tex.Cr.R. 454, 98 S.W. 258, the doctrine laid down in the Brown case, supra, was overruled, and it was there held that error was shown in dismissing the case against a codefendant without granting him immunity from further prosecution therefor. Soon thereafter, in the case of Hobbs v. State, 53 Tex.Cr.R. 71, 112 S.W. 308, 310, three parties were indicted for the offense of murder. Hobbs made a motion for a severance and requested that his two co-indictees be placed upon trial first so that in the event of their acquittal, he could have the benefit of their testimony untrammelled by fear of any prosecution. The State answered by dismissing the indictment in so far as it related to such persons. The accused objected to such proceeding because it failed to grant such persons immunity from further prosecution thereunder, and cited the Puryear case, supra. However, that case was overruled in the following language: 'Appellant claims that these proceedings were directly in the face of the holding in the case of Puryear v. State, , 98 S.W. 258, 17 Tex.Ct.Rep. 721. To this contention we accede, and if the rule adopted in the Puryear Case should prevail we would not hesitate to reverse the case for the error here assigned. We do not believe, however, that the Puryear Case should be followed. We think the reasoning in that case is fallacious and unsound, the conclusion reached unsafe, and the result wholly mischievous. It is directly in the teeth of the decision of this court in the case of Brown v. State, 42 Tex.Cr.R. 176, 58 S.W. 131.'

Again, the court said: 'Suppose we reverse this case. Let us assume the most charitable view that Watson and Leggett are both innocent. It results that we send this case back to the district court of Hill county, with a message to the judge of that court that he is to go bravely through with the reassembling of the grand jury, that they may indict innocent men, for the purpose of having a formal order of acquittal entered, to the end that appellant may have the option, which so far he has not chosen to exercise, to offer these codefendants as witnesses on the trial of his case. As we say, we think that the Puryear Case is not supported by the intent and true meaning of our statutes. It is against the early decisions of the court. It is illogical in its reasoning, and it is evil, and only evil, in its results. So believing, we overrule the Puryear Case, and uphold and commend the action of the trial court in the matter complained of.'

Also, in the case of Munoz v. State, 147 Tex.Cr.R. 212, 179 S.W.2d 566, 568, the doctrine laid down in the Hobbs case, supra, is again followed, demanding, however, that such dismissal be made in good faith, the lack of which is complained of herein by appellant. In that case the co-indictee was again indicted and returned to jail, but such conduct would not foreclose bad faith upon the part of the State. We quote therefrom as follows: 'That fact that Flores, by his own testimony, implicated himself in the murder, which subsequently caused him to be re-indicted, would not justify the conclusion that the dismissal of his case was not made in good faith, nor would the fact that he was held in custody during the trial of appellant's case justify such a conclusion. He was a witness for the appellant, and if the District Attorney and the Court deemed it advisable to hold him in custody in order to secure his attendance in court during the trial, it would not authorize us to say that the dismissal of his case was to circumvent the law.'

In the instant case, we think this matter rests upon whether or not this dismissal was had in good faith upon the part of the State, and the argument is offered by appellant that the fact that upon Beck being placed upon the stand and refusing to testify unless granted immunity and the trial judge ordering him to be held as a material witness, of itself evidences the bad faith of the State in such dismissal. The trial court explains such act by saying that...