Turner v. State
| Decision Date | 03 May 1922 |
| Docket Number | (No. 6241.) |
| Citation | 241 S.W. 162 |
| Parties | TURNER et al. v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Clay County; H. F. Weldon, Judge.
Jack Turner and Ed Barton were convicted of burglary, and they appeal. Reversed and remanded.
John T. Spann, of Dallas, Wantland & Dickey, of Henrietta, and Chas L. Black, of Austin, for appellants.
R. G. Storey, Asst. Atty. Gen., for the State.
The appeal is from a conviction of the offense of burglary; punishment fixed at confinement in the penitentiary for two years.
A drug store in the village of Byres was burglarized on Saturday night. On the Sunday afternoon following the appellants and another young man were arrested in the town of Henrietta, the county seat of Clay county. There were missed from the store some coins, which were not described further than to say that it was change in the cash drawer. Two bottles of perfume and some cigars were also missed. An automobile was taken from the garage of the owner of the drug store. This was found some distance from Byres, where it was abandoned, and around it were some footprints.
The weather was rainy, and at the time of their arrest, the appellants and their companions were in bed at a hotel in Henrietta, Tex. In their possession were found articles corresponding to the general description of those lost. The money, of course, could not be identified; neither could the cigars nor the perfume, other than it was of a kind like that which was missing.
Upon these circumstances and some others the state depended for a conviction. The arrest was made on the 24th of October, and the appellant remained in jail until the time of their trial, which took place on the 1st day of December. On the trial, they testified, in substance, that they were going on foot from a point in Oklahoma, where they had been in search of work, to the oil fields of Texas; that they were in the village of Byres on the Saturday preceding the burglary, and that they left there during the evening before the time at which the testimony shows the store to have been closed, and went to the village of Petrolia. They explained the possession of the articles by the statement that they found them on the bumper of a box car at Petrolia, wrapped in a wet blanket.
While at Petrolia, they were in various places of business, and had transactions with reference to buying food and making application for work; that they were strangers, and were unable to name any of the parties with whom they had talked. Their testimony, if true, established an alibi.
Before going to trial, they presented a motion to postpone the trial. In the motion, it is shown that from the time of their arrest until the 30th day of November, they were in jail and were denied the privilege of consulting their attorneys; that repeated efforts were made by the attorneys whom they had selected to interview them, but the sheriff refused to permit any conversation between them except in his presence; that in the course of the efforts of their attorneys to see them and converse with them and prepare their case for trial, they appealed to the district judge, and obtained from him an order, directing the sheriff to afford an interview. The sheriff, however, declined to comply with this order, and the effort to consult their attorneys in person and privately was not afforded until the new sheriff came into office, which took place on the day before the trial began, and that at that time they communicated to their attorneys the substance of the matters which have been detailed, and to which they testified upon the trial. The postponement was requested upon the theory that by the delay (which was not to be made beyond the expiration of the term of court) they would be able, by description, to identify the persons with whom they had talked, and whom they had seen while in the village of Petrolia; that they were unacquainted with the names of these parties, but that they could furnish such description as would enable the attorneys, upon investigation, or to enable them, upon release on bond, to identify them. The motion was denied. The facts were sworn to by the appellants and their attorneys. There is no qualification of the bill of exceptions taken to the refusal of the court to postpone the case, and the defensive theories of the appellants are supported alone by their testimony and that of the codefendant.
Concerning the rights of a person accused of crime, the Bill of Rights (section 10) says:
"He shall have the right of being heard by himself or counsel or both, shall be confronted with the witnesses against him, and shall have compulsory process for witnesses in his favor."
This, like other provisions of the Constitution, requires the obedience and support of public officials. The law does not restrict the right of representation by counsel to the mere matter of appearance upon the trial of his case. To deny him the privilege of the advice of counsel in the preparation of his case for trial is an unwarranted abridgment of the right guaranteed him by the Constitution. Mindful that it is essential to the enjoyment of this right that free and private communication with his counsel be permitted, the Legislature has by statute inhibited the disclosure by the attorney at law of matters revealed to him by his client coming to his knowledge by reason of such relationship (Code of Crim. Proc. art. 793), and has by penal statute said:
"If any officer or other person having the custody of a prisoner in this state shall willfully prevent such prisoner from consulting or communicating with counsel, or from obtaining the advice or services of counsel in the protection or prosecution of his legal rights, he shall be punished," etc. Penal Code, art. 1046.
The courts have carefully guarded this privilege when it has been assailed. Jackson v. State, 55 Tex. Cr. R. 79, 115 S. W. 262, 130 Am. St. Rep. 792; Ruling Case Law, vol. 8, p. 83; Ex parte...
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