Schepps v. State

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DICE, Judge.

On appellant’s motion for rehearing, the writer voted to reverse the conviction because of the admission in evidence of the principals’ confessions without the portions referring to either the appellant or the House of Tobacco having first been excised. At the time, I was of the opinion that appellant’s request that such portions be excised should have been granted.

Upon further consideration, I now conclude that the references to appellant and the House of Tobacco were so interwoven with the acts of the principals that to excise them would render the confessions incomplete and fragmentary. For such reason I now join Presiding Judge Wood-ley, upon the authority cited in his opinion, and dissent to the overruling of the state’s motion for rehearing.

Pointer v. State of Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 , and Washington v. State of Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 cited by appellant in his motion for rehearing, which involve the rights of an accused to confrontation of witnesses and compulsory process under the Sixth Amendment to the Constitution of the United States, are not here controlling.

In Pointer v. State of Texas, supra, testimony of a witness given at an examining trial at which the accused was not represented by counsel was introduced directly against the accused at his trial for the offense charged.

In the instant case, the confessions were not introduced in evidence directly against the appellant to show his guilt as an accomplice but were introduced for the limited purpose of showing guilt of the principals.

Washington v. State of Texas, supra, involved the right of an accused to the testimony of his co-principal in the crime, and is not here applicable.

Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (May 20, 1968), decided by the Supreme Court of the United States after this court’s opinion reversing appellant’s conviction, is not controlling, because that case involved a joint trial in which the confession of one co-defendant which implicated both defendants was introduced in evidence. 1 In Bruton, *945 the prosecution was not required to prove the guilt of the codefendant in order to convict the other.

This distinguishes the case from the instant one, where appellant was being tried, alone, as an accomplice and the confessions were introduced not against him but for the limited purpose of proving guilt of the principals — which the state was required to do in order to convict.

The state’s motion for rehearing should be granted and the judgment of conviction affirmed.

WOODLEY, P. J., joins in this dissent.

. The conviction of the codefendant was set aside on the ground that in's confession should not have been received in evidence against him. Evans v. United States, 375 F.2d 355 (Eighth Circuit, 1967). The conviction of Bruton, the other defendant, was reversed by the Supreme Court of the United States because of the admission in evidence of the confession despite the trial court’s instruction to the jury to disregard it in determining his guilt. Bruton v. United States, supra.