Jones v. State

on rehearing.

June 25, 1919.

MORROW, Judge.

Counsel for appellant have filed a motion for rehearing, exhibiting commendable zeal, great research and uncommon ability. It is insisted that the refusal of the court to be guided by the rule announced m Puryear v. State, 50 Texas Crim. Rep., 454 , was error, which should be corrected. The rule contended for by the appellant is, that the grand jury having indicated Tom Coggin and Millard Coggin for the murder of Tom Lyons in the same indictment under which appellant was tried, and a severance having been had, and the order of trial fixed whereby the case of each of the Coggins was set in advance of that of appellant, that the State was powerless to try the appellant until after each of the Coggins had been either tried, or upon their dismissal they had been given, immunity from further prosecution for the same offense. The views of the court at various periods of its history as reflected by the decisions are referred to in the original opinion.

In deciding the Puryear case,

supra,

that of Brown v. State, 42 Texas Crim. Rep., 176 , was in direct conflict, and was expressly overruled. In Hobbs v. State, 53 Texas Crim. Rep., 74 , the court said:

"Appellant claims that these proceedings were directly in the face of the holding in the ease of Puryear v. State, 50 Texas Crim. Rep., 454 . To this contention we accede, and if the rule adopted in the Puyear case should prevail we would not hesitate to reverse the case for the error here assigned. We do not believe, however, that the Puryear ease should be fllowed. 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 Texas Crim. Rep., 176 . It is, as we believe, at variance with the letter and spirit of our Code of Criminal Procedure. ... 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 reason

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ing 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.”

In Manor v. State, 45 Texas Crim. Rep., 372 , the reversal took place, as we understand the opinion, because, in the reasons given by the prosecuting attorney in his motion to dismiss the case against the co-indictee, it was made to appear that the case was not dismissed for any reason which the statute recognized as a legal one, and disclosed an intent upon the part of the prosecution to subvert the severance statute and wrongfully deprive the accused of the benefit of its provisions. That case and the Smith case, 55 Texas Crim. Rep., 327 , enforce a sound principle, viz., that the prosecution cannot deprive one accused of crime of his legal rights by fraud and circumlocution, and that when an attempt is made to do so, and the facts are properly brought before this court for review, such proceeding will not receive its sanction. But in the absence of such a showing this court will not, and is not authorized to presume other than good faith in the action of the trial court and the prosecuting officers. The statute, Article 729, C. C. P., having direct reference to the question of severance, says: “The attorney representing the State, may, at any time, under the rules provided in article 37, dismiss a prosecution as to one or more defendants jointly indicted with others; and the person so dismissed may be introduced as a witness by either party. ’ ’ This is a provision of the Code of long standing. Article 37 C. C. P., is as follows:

" The district or county attorney shall not dismiss a cáse unless he shall file a written statement with the papers in the case, setting out his reasons for such dismissal, which reasons shall be incorporated in the judgment of dismissal; and no case shall be dismissed without the permission of the presiding judge, who shall be satisfied that the reasons so stated are good and sufficient to authorize- such dismissal. ’ ’

We have before us no authenticated statement impeaching the good faith of the trial judge and prosecuting attorneys, or showing that there was a departure from the procedure thus pointed out by the statute. The question presented is this: When a severance is ordered does the law require the State to grant immunity from further prosecution to the co-indictee whose trial is first in order on its dismissal before it can proceed with the trial of one whose case, in the order of severance, is subsequent? In the opinion of the writer, the negative answer of of this question is pertinently and correctly put by Judge Ramsey in the quotation from the case of Hobbs v. State,

supra.

We think the accused was accorded his full legal rights when the cases against the co-indictees were dismissed,"" there appearing nothing in the order of dismissal, nor in the bill of exceptions reversed to the action of the court, which impeaches

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the fairness and good faith of the court and its officers in their action. The right of severance of joint indictees comes from Article 726 of the present statute; the old Code, Article 587; Paschal’s Digest of Laws, Art. 3054. See Forcey v. State, 29 Texas Crim. App., 409; Boothe v. State, 4 Texas Crim. App., 207; Teiman v. State, 28 Texas Crim. App., 145. They had the right to agree, upon the order of trial, and having done so, it was not within the power of the court or its officers to arbitrarily or fraudulently deprive them of the benefit which it was intended the statute should give them. But as we understand the proposition contended for by appellant, it asserts that a right accrued to the accused which was not given by the statute, but which, on the contrary, was in opposition to the terms of the statute, placing a limitation upon the right of the State not embraced in and not reasonably implied by Article 791, C. C. P., which we quote as follows:

“Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another, but they may claim a severance; and, if any one or more he acquitted,

or the prosecution against them be dismissed,

they may testify in behalf of the others.”

Before the passage of this statute it was not the right of one accused of crime to demand that his co-indictee be given immunity so that he might be forced to testify, and so that his testimony would be relieved of the odium of suspicion attendant upon his indictment. Prior to the passage of the statute the co-indictee might testify in behalf of the accused on trial, and he might also refuse to testify as the co-indictees in the present instance did, and if he elected to give his testimony he was subject to cross-examination, which would have disclosed his indictment and his interest in the cause. In the passage of Article 791,

supra,

which was in the Code, Article 230, Paschal’s Digest, 1826, the previously existing rule of evidence was modified in the respect that co-indictees were not available to the accused as witnesses in his behalf, unless they were acquitted, or the prosecution dismissed. Tilley v. State, 21 Texas, 201 . So long as they were under charge of the offense they were disqualified. When the prosecution against them ceased, their disqualification was removed. The disqualifying fact was the indictment. Its dismissal . removed the disqualification. The view that the dismissal must be accompanied by immunity is one that we cannot accept. To our minds it is neither within the letter nor the spirit of the law. It was intended by the law-makers in writing the severance statute that the State could not close the month of one who knew facts favorable to the accused by including the witness in the indictment. This purpose is effected when the law forces the State to either try the indicted witness or dismiss his case before his co-indictee is put on trial. It accomplishes this; it intended no more.

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There was evidence that the appellant, acting under an assumed name, and false pretext enticed the deceased from his home at Silver City, New Mexico, to El Paso, met him at the train, invited him into the automobile for the purpose of going from the depot to the City, that the automobile was driven by an unidentified man, that this occurred at night, that the body of the deceased was found the following morning in a ravine some distance from El Paso, that there were automobile tracks near the ravine, that the traveling bag of the deceased was found near him, that his pockets were rifled, that nearby was an iron bar upon which there was blood and gray human hair, that near the body was a box containing sand and upon the box and sand there was blood and gray human hair, that the appellant two days after the homicide stated to one Clark that while the deceased was in the automobile the appellant had made á pretext to stop it and had dealt the deceased a number of blows upon the head with an iron bar, that he had put his head in the box to prevent the blood from getting upon the floor of the car, that he had been promised two thousand dollars by Tom Coggin for killing deceased and had been paid by Tom Coggin five hundred dollars of the amount. The conversation with Clark, according to Clark’s testimony, took place at Colorado, Texas. The appellant was arrested at Beaumont, had in his possession a mileage book purchased at Colorado, a memorandum showing that Tom Coggin’s ranch was a certain distance from Glen Rosa, New Mexico, also a memorandum showing the number of Tom Coggin’s house in El Paso. There was evidence that Millard Coggin resided in New Mexico, apparently at the point mentioned in the memorandum, near Tom Coggin’s ranch. Appellant also had, when arrested, a memorandum partially erased, giving the telephone number of a garage situated in El Paso which evidence showed was the Auditorium Garage belonging to the witness White. Several days' after the homicide the sheriff and others located a Buick automobile at the Auditorium Garage. There was evidence that the top of this car when found was down; that inside of the top there were blood stains with gray hair matted in them. The gray hair, according to the evidence, corresponded in color with that of the deceased and with that found upon the box which was found near the dody of the deceased. The car also had blood stains on the floor, on the door, the cushions and the back of the seat. There was a new rug in the back of the car when found and it appeared that the old rug had been cut so that pieces of it. remained under the footrail. There was found in the car a new hammer with what .appeared to be blood stains upon it. An analysis was made of the blood stains on the car, on the box and on the iron bar and were found, according to the testimony, to be human blood. The hair on the car and the other objects mentioned was also examined by an expert with instruments and, according to his testi

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mony, that found upon each of them concided with that on the others. Hunter, a witness for the State, testified that while at a point in New Mexico near Alamogordo where Tom Coggin was shipping cattle, he, on the day following the homicide, saw a strange man whom he later indentified as appellant; that the appellant and Tom Coggin were in the caboose of the train together, that appellant was not connected with the cattle shipment. The witness testified also that on the day following the homicide he saw Millard Coggin at the point mentioned in New Mexico driving and that he came in an automobile. Another witness testified that between the point mentioned in New Mexico and El Paso on the day following the homicide, he saw Millard Coggin driving an automobile in which there was another man whom the witness did not Imow. Appellant’s presence with Millard Coggin at the time was controverted by circumstances. Proof was made by the witness White that on the evening of the day on which the homicide took place he had rented the car which was found by the sheriff, to Millard Coggin and it had by Coggin been driven out of the garage, and that at the time it wras taken the blood stains and hair were not upon it and the old rug had not been taken out nor a new one put in, and that two days after the homicide Millard Coggin returned the car, paid for its use and that upon its return it was in the condition described by the sheriff and others who examined the blood stains and hair upon it. The case was tried upon the view that the State’s testimony consisted alone of circumstantial evidence and the appellant was given the benefit of the charge on the law of circumstantial evidence. Under the rules applicable to such evidence circumstances are admissible which tend to prove the issue. Incidents are legitimate which would be irrelevant depending upon direct testimony. Circumstances may be established when they tend to make the proposition or issue more or less probable. McGuire v. State, 10 Texas Crim. App., 125; Grimmett v. State, 22 Texas Crim. App., 36; Preston v. State, 8 Texas Crim. App., 30; Parish v. State, 209 S. W. Rep., 679 .

Under these rules, the evidence which was introduced showing that Millard Coggin hired a car, the condition it was in at the time it was hired and when it was returned, were, we think, admissible independent of whether a conspiracy to commit the murder in which Millard Coggin was a party, was proved or not. The evidence that the deceased was killed in a car in such manner that his hair and blood would probably have been upon it, in connection with the evidence showing that the hair and blood found upon the car at the garage two days after the homicide and that found upon the objects with the body of deceased, and which the evidence tended to show was used in his destruction, were similar, were sufficient to take to the jury the question as to the identify of the car which was found with that into which the appellant invited the deceased on

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the night of the homicide. With such evidence of its identity, we think it infringed no rule of circumstantial evidence to permit the State to trace the car by evidence from the time that it was found with the blood stains upon it back to the time when it left his garage before the homicide in a different condition. We are of the opinion, however, that the facts which we have detailed were sufficient to raise an issue of fact as to whether there was a conspiracy to kill the deceased to which appellant and both Millard and Torn Coggin were parties, and that under the rule stated in the original opinion touching the acts of co-conspirators found in the possession of the instrument used in committing the crime, the evidence introduced tending to show Millard Coggin ?s connection with the car was admissible.

We would but indulge in repetition to review the criticism of the action of the court touching the special venire. The original opinion correctly reflects the record and expresses the view to which we adhere on the legal questions presented therein. Believing that there is nothing disclosed in the record which entitles appellant to a new trial or authorizes a reversal of the judgment rendered and approved by the trial court, the motion for rehearing is overruled.

.Overruled.