Stevens v. State

• Decision Date: 27 June 1900
• Parties: STEVENS v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

59 S.W. 545

STEVENS v. STATE.¹

Court of Criminal Appeals of Texas.

June 27, 1900.

Appeal from district court, Anderson county; A. D. Lipscomb, Judge.

Bob Stevens was convicted of murder, and he appeals. Affirmed.

E. B. Muse, J. S. Woods, Starr & Allison, Stillwell H. Russell, Gregg & Brooks, and Faulk & Faulk, for appellant. N. B. Morris and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

The grand jury of Henderson county returned an indictment against Joe Wilkerson, W. Wilkerson, W. B. Brooks, Sam Hall, W. A. Johns, Bob Stevens (appellant), and John Gaddis, charging that they "did on or about the 23d of May, 1899, in said county, unlawfully and with malice aforethought, kill and murder Jim Humphries, by then and there hanging him with a rope to a tree." At the same term of the court each of the above parties was separately indicted in two different indictments, for the murder of John and George Humphries. John and Arthur Greenhaw and Polk Weeks were separately indicted in three several bills, each charged with the murder of John, Jim, and George Humphries. At the September term of the district court of Henderson county the court, of its own motion, changed the venue of the defendants, except John and Arthur Greenhaw and Polk Weeks, in all the cases, to the district court of Anderson county. John and Arthur Greenhaw and Polk Weeks, under a contract with the state, through the district attorney, turned state's evidence; and, in changing the venue of the various murder indictments above mentioned, the court merely transferred an indictment against each of said last-named parties to Anderson county, wherein they were charged respectively with the murder of George Humphries, leaving the indictments for the murder of John and Jim Humphries, respectively, still pending in the district court of Henderson county. Appellant was tried in Anderson county, after the venue was changed, was found guilty of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Appellant's first assignment of error complains that the court erred in overruling the motion for severance between defendant and his co-defendants, supported by their affidavits, to have the two Greenhaws and Weeks first put on trial, and in overruling his individual motion and affidavit to have the said Greenhaws and Weeks first put on trial. 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." Each of the several motions of appellant complies in all respects with the conditions and provisions of this article. Upon the filing of the motion (which is not necessary to be quoted) the said two Greenhaws and Weeks filed an affidavit, and denied the facts stated in the affidavits of the said joint defendants, to the effect (1) that the testimony of them, or either of them, would be at all material to the other defendants, or either of them; (2) that they, and each of them, were members of the mob that murdered Jim, John, and George Humphries, and that each of the parties to said motion was also a member of said mob, and assisted in murdering the said Humphrieses; (3) that each of them had heretofore testified to the effect that said parties filing said motion, together with these defendants, murdered the said three Humphrieses, by hanging them with ropes, about the time charged in the indictment; (4) that affiants had a contract with the state, through her proper officers, if they would truthfully testify stating the facts concerning said murder, whenever called upon, that they shall be discharged after all of said defendants shall have been tried, or their cases otherwise finally disposed of; that said contract was made in good faith; that they have decided to keep the same faithfully, and testify in each and every trial against all other persons indicted as principals or accomplices to said murder, and ask that the other defendants be put on trial first. In addition to the answer of the three state's witnesses, the district attorney also filed his answer and protest to the motion of said joint defendants, and, among other things, states: "(1) That said case called for trial is upon indictment charging the defendants in said motion with the murder of Jim Humphries. That there is no case pending in the district court of Anderson county against the two Greenhaws and Weeks, charging said murder. (2) That the facts stated in said motion to the effect that the two Greenhaws and Weeks would be material witnesses for defendant, if they should first be tried and acquitted, are not true, and defendants knew they were not true when they subscribed and swore to said affidavit. (3) The state further says that defendants in said motion stand charged in three several indictments now pending in this court for the murder of Jim, John, and George Humphries, respectively, and that it is not true, as stated in said motion, that said murders constitute one and the same offense, in law, but, on the other hand, they are three separate murders. (4) That the state has a contract, as stated in the affidavits of the two Greenhaws and Weeks, under the terms and conditions of which the parties agreed to turn state's evidence and testify, and under the conditions of which they are to be subsequently released on the final discharge of the other defendants." There is nothing in the answer of the two Greenhaws and Weeks and the district attorney that is a legal defense to the application for severance made by appellants, except the fourth subdivision, alleging a contract with the state, through the proper officers, under the terms and conditions of which the Greenhaws and Weeks are to be released from any further prosecution provided they shall truthfully testify concerning all the facts pertaining to said murders. They further state that up to the time of the filing of the affidavits they had complied with their part of the contract, and stand ready to testify; that they had theretofore testified in the examining trials, accusing in each instance all of the defendants of guilty participation in the murder of the three Humphrieses. This, we take it, is a complete answer to the application of the other defendants and appellant, asking for a severance. The proposition, stripped of all verbiage, is this: A. and B. jointly kill C. A. agrees with the district attorney to testify truthfully against B. as to the homicide, and is to be released from prosecution if he will tell the truth, the whole truth, and nothing but the truth. We held in Greenhaw's Case (Tex. Cr. App.) 53 S. W. 1024, that this would be a continuous contract between the district attorney, representing the state, on one side, and the party turning state's evidence on the other; and, under the terms and conditions of said contract, Greenhaw is entitled to perfect immunity as long as he complies, or stands ready to comply, with the spirit and letter of the contract. This being true, B., by filing an affidavit under the terms and conditions of article 707, Code Cr. Proc., cannot force the trial of A. first, because A. is free from any prosecution, under the contract to turn state's evidence. To hold otherwise would be to say that B., by filing an affidavit under article 707, thereby could force an abrogation of the contract on the part of the state and A., who had previously turned state's evidence. We hold, therefore, that when appellant moved the court, under article 707, for a severance, and asked that the two Greenhaws and Weeks be first tried, this should not be done, although they strictly complied with said article, in view of the answers set up by them and the district attorney, wherein a contract is shown between the district attorney and said two Greenhaws and Weeks whereby they agree to turn state's evidence and receive immunity from prosecution. It is recognized practice in this state that the district attorney may, with consent of court, permit one or more parties accused of crime to turn state's evidence, and use them as witnesses against his co-defendants. See articles 37, 630, Code Cr. Proc.; Nicks v. State (Tex. Cr. App.) 48 S. W. 186; Greenhaw's Case, supra. Therefore article 707, authorizing appellant to have a severance, does not abrogate these last-cited articles, nor authorize one defendant to have a co-defendant tried first, when such co-defendant has entered into a contract to turn state's evidence. These statutes must be construed together, and when so considered no other conclusion can be reached than that indicated above. We do not think that the court erred in refusing to grant appellant the right of severance. This being true, it matters not whether the indictments against the state's evidence witnesses remained in the district court of Henderson county, or the venue thereof was changed to Anderson county.

Appellant's second assignment of error is that the court erred in permitting threats, acts, and declarations of one joint defendant to be introduced as evidence against another defendant before a conspiracy had been...