The opinion
While I agree to the disposition of the case made by the majority of the court, I do not concur in that portion of the opinion in regard to the right of severance. It appears from the action of the learned judge who tried the case that he construed article 709 as vesting a discretion in the district attorney to dismiss a prosecution as to one or more defendants jointly indicted with others, and so escape the effect of a motion to sever. It would also appear that this view is upheld and adopted by a majority of this court. I can not agree to this construction. Article 707 guarantees to a defendant the right to sever from his codefendant, and to have him tried first, in order to secure his testimony; said right being based on an affidavit that affiant verily believes there is not sufficient evidence against the codefendant whose evidence is desired to secure his conviction. Article 709 simply authorizes the attorney representing the State to dismiss a prosecution as to one or more defendants jointly indicted with others, on complying with article 37 (which requires that the motion be made in writing, and submitted to the judge), and the person so discharged may be introduced as a witness by either party. This latter article is absolutely independent of article 707, and I do not think it was intended to qualify it, or to take from a defendant any of the rights guaranteed him by the previous article in regard to severance. I certainly take it that article 707, by its express provisions, secures to a defendant the full benefit of a codefendant's testimony, unhampered by the cloud of a *Page 187
prosecution that may be afterwards invoked. If the construction placed on these articles by a majority of this court is the correct one, then, in answer to a motion for severance under article 707, the State can simply dismiss the case against the codefendant for the time being, and thus permit him to testify for the defendant then being tried with the sword of Damocles hanging over him while he is giving his evidence. I take it that it will not be gainsaid, if article 707 is complied with, and the codefendant is first tried and acquitted, his testimony will be more valuable to his codefendant being tried than if the case is simply dismissed against the codefendant witness with the obligation on the part of the State not to afterwards prosecute him. But even this would be worth much more to a defendant being tried than the simple dismissal of a case against his codefendant in order to enable him to be a witness, with the understanding, however, that, as soon as the case being tried was disposed of, he would be rearrested and prosecuted. I do not deny that it is competent for the State to dismiss a prosecution pending as to one or more defendants jointly indicted with others, and, when such prosecution is dismissed, the person so discharged may be introduced as a witness by either party; but this is when the action of the court does not involve appellant's right to sever. In other words, whatever may be the construction placed on article 709, the right of severance guaranteed in article 707 can not be frustrated by a simple dismissal of the case against the codefendant. To test this matter, suppose that in answer to a motion to sever under article 707 the district attorney should, with the approval of the court, dismiss the case against the codefendant desired as a witness, and he should then be tendered as a witness to the codefendant being tried, if he should decline to testify, on the ground his evidence might inculpate himself, what power would exist in the court to compel him to testify? Evidently none, and consequently the mere dismissal of the case against him would serve no useful purpose. Suppose he did not claim his privilege, but proceeded to give his evidence in the case, what guarantee would the codefendant being tried have that, thus hampered and swearing, as it were, the halter around his neck, he would tell the truth, the whole truth, and nothing but the truth? It occurs to me that article 707 was intended to secure a right on behalf of a defendant who was indicted, either separately or jointly with others charged with the same crime; and that no other provision of the statute by judicial construction merely should be permitted to override and nullify the provisions of said article which were enacted for his benefit. If the construction placed on these articles by a majority of the court is sound, then the advantages guaranteed to a defendant, under the provisions of article 707 are overridden by article 709, and important rights guaranteed under the previous article are thus frustrated by a simple dismissal of the case against the codefendant. If this can be done at all, it must be with the distinct guarantee that the codefendant can not be again *Page 188
prosecuted for the same offense which has been dismissed against him, and concerning which he is called upon to testify.
I notice that the opinion of the majority refers to King v. State, 35 Texas Criminal Reports, 472, and Shaw v. State, 39 Texas Criminal Reports, 174, in support of the views expressed. An inspection of said cases, far from sustaining the doctrine announced, is in contravention thereof. In both cases the right of severance is regarded as an absolute right when the provisions of the statute are compiled with. In the latter case we quote from the language of the court as follows: "It was no response to his motion that Wilson would be placed on the stand as a witness. He had a right to have Wilson tried first, and, if acquitted, he might use him as a witness unburdened in the pending prosecution against him; a right for him to testify as any other citizen, free from the particular charge, he being acquitted thereof, and not testifying under a cloud, and perhaps believing that, testifying strongly against appellant, it would go easier with him in this case." Entertaining the views herein expressed, I do not believe when a defendant makes a motion to sever, under article 707, he can be deprived of the advantages vouchsafed to him by said article by a simple dismissal of the case under article 709, with the reserved right on the part of the State to rearrest and prosecute the codefendant witness.