De Warren v. State

• Decision Date: 31 January 1867
• Citation: 29 Tex. 464
• Parties: WILLIAM H. DE WARREN v. THE STATE.
• Court: Texas Supreme Court

29 Tex. 464

WILLIAM H. DE WARREN

v.THE STATE.

Supreme Court of Texas.

January, 1867.

Articles 437 and 437 a provide, that when the witness resides out of the county in which the prosecution is pending, the defendant shall be entitled, on application under oath, stating certain facts, to an attachment; and that the issuance of, or an application for, a subpœna shall not be considered due diligence, in cases where the law authorizes the issuance of an attachment. Pas. Dig. arts. 2908, 2909.

Where such facts are stated as show that, owing to the great distance, no use of diligence could have secured the attendance of the witness, it dispenses with the necessity of an attachment.

Where the accused applied for a continuance, and swore to the material facts which the witnesses would state, upon which the district attorney admitted that the witnesses would swear to the facts as stated, but refused to admit that such facts were true, reserving to himself the privilege to disprove the statement, or to discredit the witnesses, it was error to force the accused into trial.

The third division of art. 518 of the code of criminal procedure declares that it shall be sufficient, upon the first application for continuance, to state the facts which are expected to be proved by the witnesses, and it must appear to the court that they are material. But there is no provision that the district attorney may admit that the witnesses would so swear, unless he also admit that the facts are true. Pas. Dig. art. 2987, note 736.

The accused has the constitutional right to have the witness present. Pas. Dig. p. 48, § 8.

The rule as to the confessions of the accused is governed by art. 662 of the code of criminal procedure. Pas. Dig. art. 3127, note 671.

Where the accused stated in his application for continuance that his witnesses would swear that he bought the horse which he was accused of stealing, his statement of thus having the horse might be used as a confession against him, if it be proved that he did not purchase the horse as stated.

APPEAL from Colorado. The case was tried before Hon. BENJAMIN SHROPSHIRE, one of the district judges.

This case was appealed to the Galveston session, but decided at Tyler, and certified back to Galveston, and hence it is reported in this volume.

De Warren was indicted the 8th March, 1867, for larceny of a stallion, tried and convicted on the 11th of the same month; his punishment was assessed by the jury at twelve years in the penitentiary. When the cause was called for trial he applied for a continuance, upon the ground of the absence of material witnesses. The court held, that the application was good, and granted the continuance.

The state, in order to avoid the continuance, offered to admit that if the witnesses named in the affidavits were present they would swear to the facts set up therein: De Warren insisting that before he should be forced into trial the state must admit that the facts stated in his said affidavit were true. The state compelled him to go to trial upon the qualified admission of the state. This ruling is assigned for error, and is the main question in the cause.

Barnard & Putney, John T. Harcourt and Robert L. Foard, for appellant. The point at issue was incidentally before the supreme court of Texas in the case of Hyde v. The State, 16 Tex. 453, and WHEELER, J., gave it as his opinion, that the state could not force a defendant into trial upon such a qualified admission. He cited The People v. Vermilyea, 7 Cow. 369, and 1 Meigs, 95, which authorities are decisive of the question, and SAVAGE, C. J., in the case from 7 Cow., cites the case of Brill v. Lord, 14 Johns. 341, to show what admissions should be made.

In the case of 7 Cow., the defendants desired to continue the cause on account of the absence of one General Swift, and SAVAGE, C. J., remarks as follows: “Admitting that the defendants were entitled to the testimony of the witness, then the only question is, had they the benefit of his testimony? In my judgment, most clearly they had not. When testimony was given showing, prima facie, that the witness could not swear, as it was admitted he would, without being guilty of a contradiction, could the jury shut their eyes to the fact, which was staring them in the face, that General Swift had not sworn anything about it?”

And WOODWARD, J., says: “We have nothing to do with the merits, but only with the question whether the legal course of practice has been pursued to reach those merits. The defendants are, in common with every other citizen, entitled to a trial according to the law of the land; and, if the rules of that law have been mistaken, I hold it my duty to give them a new trial.”

As to the continuance of cases, we hold that the gen eral rule is the same in civil and criminal causes (Hyde v. The State, 16 Tex. 453; Rex v. De On, 3 Burr. 1513; 1 Bla. 510), though the application in criminal causes is looked into with more strictness. If the statute has been complied with, the court can exercise no discretionary power. The continuance must be granted. Hipp v. Bissell, 3 Tex. 18;Prewitt v. Everett, 10 Tex. 283. The court, it is true, can look to the pleadings to see if there is a “defense” which would support the evidence sought. Fowler v. Buckner, 23 Tex. 85.

In the case of Hyde v. The State, 16 Tex. 454, it is held, that counter affidavits will be received to destroy the common affidavit, and the court says, that “in criminal cases we look to the common law for the rule of practice, in the absence of statutes. At the date of the decision of this cause, the penal code and the code of criminal procedure had not been adopted by the state of Texas, and the court naturally looked to the common law for guidance in matters of criminal practice. But we have now a complete code of penal laws, and a complete code of criminal procedure or practice. If we wish to know whether an offense has been committed against the state, we turn to the penal code; if we wish to know how we are to proceed to punish that offense, we look to the code of criminal procedure. The latter code lays down the affidavit a defendant shall make to continue his case; if he complies fully with the requirement, the court must grant him a continuance: he has no discretion. It matters not whether the court has suspicions of the verity of the affidavit or the fairness of its object; the code provides for no such case. It neither authorizes the receipt of counter affidavits nor of any other testimony to defeat the application. The dry question is this, does the affidavit comply with the statute?”

In the case of People v. Vermilyea, 7 Cow., SUTHERLAND, J., quoted by WHEELER, J., in Hyde v. The State, says: “In the cases where the common affidavit applies the court has no discretion; but where there has been laches, or there is reason to suspect the object is delay, the judge at the circuit court may then take into consideration all the circumstances, and grant or delay the application at his pleasure.” He then goes on to give a history of that case, to show facts and circumstances which justified the lower court in overruling the application for continuance: “Such as the neglect of the defendants to apply for a commission to take the testimony of the absent witness, Swift, at the May term; that the cause had been twice tried, and the materiality of the testimony of the witness was well known. He was a foreign witness, and beyond the process of the court. The nature of the case was entitled to consideration. It was apparent that General Swift could know nothing which might not be reached through the other witnesses. The facts had been gone over in other trials. The transactions were of a public character, or at least of a nature more likely to be known than acts which usually pass under a single eye. It is easy to see how the subscribing witness to a deed may be essential; so of any single ground of defense, or any important or decisive fact--an alibi, for instance.” Yet in this very case, with all these suspicious circumstances attending it, and the court below refusing the application for continuance, the majority of the court held, that the lower court erred in forcing the defendant into trial under the qualified admission of the state that the witness, Swift, would swear to the facts stated in the affidavit if present. This witness, too, had been tried on the very same indictment and acquitted.

In the case 7 Cow., SAVAGE, C. J. cited Ogden v. Payne, 8 East, 31 to 37; The Bank of Utica v. Hilliard, 5 Cow. 15; Hooks v. Rogers, 6 Cow. 557, as cases wherein the court reversed the decisions of the lower court, refusing continuances. In the case 5 Cow. 15, the judge refused to put off the case on the common affidavit, unless the defendant would specify in his affidavit what he expected to prove by his absent witness, who was the attorney of plaintiff; which being declared by the defendant, the court ruled him to trial. The supreme court reversed the decision below, stating that the practice requiring a specification of the testimony did not apply unless circumstances of suspicion are made to appear.

We deny the proposition, that the district judge, if he erred in forcing the prisoner into trial, on the qualified admission of the state, can, after hearing the evidence, justify his ruling on the motion for a new trial by the facts brought out on the trial, and conclude that from these facts the affidavit in the first instance was false, and that he should have overruled it, and therefore his erroneous ruling, forcing the defendant into trial on the qualified admission of the state, had done the prisoner no harm. We conceive that the rulings of the court are either right or wrong at the time they are made, and depend on the facts and circumstances of the case existing at the very time of the ruling, and that we have the right to confine the question to the time of said rulings, and to the facts...