# Saucier v. State > Court of Criminal Appeals of Texas · February 22, 1950 · 156 Tex. Crim. 301 URL: https://www.frixlaw.com/law-library/cases/9769947 ## Case - **Full name:** T. C. Saucier v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 22, 1950 - **Citations:** 156 Tex. Crim. 301; 235 S.W.2d 903; 1950 Tex. Crim. App. LEXIS 1502 - **Precedential status:** Published - **Opinion:** On rehearing by Woodley - **Judges:** Graves, Woodley - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769947 ## Opinion text on appellant’s motion for rehearing WOODLEY, Judge. After the trial court, in response to the motions of appellant and his co-defendant Beck had ordered a severance, and directed that Beck be first tried, the state’s motion to dismiss as to Beck was granted. The motion for dismissal upon its face shows that affidavit had been made and filed by appellant stating that there was not sufficient evidence to convict Beck, and that his testimony was material for appellant’s defense. Such motion and dismissal is specifically authorized by Art. 653, C.C.P., and after such dismissal, Beck was available as a witness for appellant under the statute. But appellant insists that the prosecution was not in good faith in such dismissal, because Beck was held in custody, and thereafter was charged and convicted for the murder. We cannot agree with such contention. Beck was held by order of the trial judge as a witness. He was not at the time *316 of the trial charged with the offense, the indictment having been dismissed, and no new charge having been filed. Beck was therefore available as a witness, and was in no way discredited before the jury. Beck was then in the same position he occupied before any charge had been filed against him in connection with the death of Mr. Gibbons. He was entitled to no more. Appellant was entitled to Beck’s testimony free from discredit by indictment or other form of accusation in connection with the murder. Neither appellant nor Beck was entitled to have Beck immune from future prosecution for the offense. See Hobbs v. State, 53 Tex. Cr. R. 71 , 112 S.W. 308 . In Smith v. State, 55 Tex. Cr. R. 326 , 116 S.W. 572 ; and Manor v. State, 45 Tex. Cr. R. 370 , 77 S.W. 786 , relied upon by appellant, complaints had been filed following the dismissal of the indictment against the co-defendants and this court held that the accused was entitled to their testimony free from discredit by such charges. Here, Beck was held only as a witness, and was not in any manner charged with the murder when' called as a witness at appellant’s trial. We cannot agree that the holdings of this court, to the effect that immunity from future prosecution is not required in connection with a dismissal against a co-defendant under the provisions of Art. 653, C.C.P., violate the due process clause of the Constitution of the United States. Appellant’s contention that Beck’s punishment was assessed at only five years in the penitentiary in his trial, whereas appellant received the extreme penalty, shows that he has been deprived of the equal protection of the law, or that appellant’s sentence of death as compared to Beck’s sentence amounts to cruel and unusual punishment as defined in the Constitution of the United States, Amendment 8, is not sustained. Appellant’s punishment was a matter for the jury if within the range provided by law for the offense, and the evidence is deemed sufficient to support it. Beck’s punishment was assessed at another trial, by another jury, and must be judged by the evidence there, not the evidence upon appellant’s trial. We cannot agree that the prosecuting officers were responsible for the effort of appellant’s attorney to secure immunity for Beck from future prosecution or for his contention that appel *317 lant was entitled to have Beck’s testimony while so immune. The dismissal was ordered as. provided by the statute following severance. Appellant alone was upon trial. We do not agree that the act of the prosecuting officers in moving to dismiss, as authorized by the statute, can be construed to have deprived appellant of the full benefit of counsel in contravention to the Sixth and Fourteenth Amendments to the Constitution of the United States. Appellant also insists that he did not have the full and undivided assistance of counsel in his trial in contravention of the due process clause of the Constitution of the United States. He directs attention to the fact that the one attorney who represented him at his trial was also the sole attorney for his co-defendant Beck. It is contended that a serious conflict of interest developed on the trial, the interest of appellant being to secure Beck’s testimony, and the interest of Beck being not to testify for appellant unless he was given immunity. Appellant alone was on trial, and was represented by counsel of his own choosing. Authorities relied upon under fact situations where more than one accused was on trial, represented by a single attorney acting under appointment of the court, are not deemed applicable. Counsel who represented appellant on his trial, like other counsel representing him on this appeal, took the position that reversible error was committed by the trial judge in putting appellant on trial without Beck having been tried or granted immunity. In order to perfect the record so as to present such contention to this court, and not for the purpose of having him testify as a witness to the killing, Beck was called to the stand with instructions from the attorney to refuse to testify unless granted immunity. Though we overrule the contention so raised, we are not impressed with the suggestion that trial counsel failed in his duty to appellant by such procedure. There is no showing that Beck’s testimony would have been helpful to appellant, nor is it shown what Beck’s testimony *318 would have been if he had testified. But it is shown that Beck did not refuse to testify because he thought that his testimony would be self-incriminating. We cannot agree that appellant was deprived of the assistance of counsel as guaranteed under the Constitution. The case against Beck having been dismissed before appellant’s trial began, clearly the trial court would not have been justified in depriving appellant of the services of the attorney of his choice by declaring on his own initiative that such chosen attorney was disqualified because he was also the attorney for Beck. We think that he was not disqualified, and that his effort to have Beck tried first or have him granted immunity, as well as his calling Beck to the stand with instructions to refuse to testify, was in the interest of appellant. We were in error in our original opinion wherein we said that the witness Beville was committed to the State Hospital under a ninety day commitment as an alcoholic, and at the time of trial he (Beville) had been discharged, and lived at Amarillo, Texas, a judgment of restored sanity having been entered. Beville was committed on a lunacy judgment (he said he was an alcoholic) and was still in the hospital at the time of trial. Desmond Travillion, another patient who was an eye witness, had been committed on a lunacy judgment, but prior to the trial a judgment of restored sanity had been entered. The competency of these two patients being challenged, the trial court heard the testimony offered, including the testimony of doctors attached to the staff of the State Hospital, and held the witnesses to be competent. The testimony so heard appears to sustain and justify the trial court’s ruling. Art. 708, C.C.P., provides that only insane persons who are in an insane condition of mind at the time when they are offered as witnesses, or who were in that condition when the events happened of which they are called to testify, are incompetent. A prior judgment and commitment for lunacy does not in itself disqualify the witness. See Downing v. State, 113 Tex. Cr. R. 235 , 20 S.W. 2d 202 ; Singleton v. State, 57 Tex. Cr. R. 560 , 124 S.W. 92 ; Foster v. State, 142 Tex. Cr. R. 615 , 155 S.W. 2d *319 938 ; Ebers v. State, 129 Tex. Cr. R. 287 , 86 S.W. 2d 761 ; and Flannery v. State, 153 Tex. Cr. R. 36 , 216 S.W. 2d 980 . The admissibility of the testimony of the allegedly insane witness is to be determined by the trial judge, and it is proper that evidence be heard on such issue in the jury’s absence. See Nations v. State, 91 Tex. Cr. R. 112 , 237 S.W. 570 ; and French v. State, 98 Tex. Cr. R. 578 , 267 S.W. 494 . The trial judge having admitted the evidence upon his finding that the witness is competent, the credibility of the testimony so offered is for the jury. And in passing upon such testimony the jury is entitled to hear evidence as to the mental status of the witness including his commitment as a lunatic. See Ebers v. State, supra. Appellant contends however that the witness Beville was not a competent witness by reason of his insanity commitment, and of the provisions of Sec. 1, Art. 5, of the Constitution of Texas. As we understand, appellant’s position is this: Art. 5, Sec. 1, of the Constitution of Texas provides in part that oaths and affirmations shall be taken “subject to the pains and penalties of perjury.” Art. 309, P.C. provides punishment of death for a witness who testifies falsely to a material fact tending to produce conviction when death is assessed and is suffered by the accused. Art. 34, P.C. provides that no act done in a state of insanity can be punished as an offense. It is therefore contended that the witness Beville, because of his commitment, cannot be convicted of perjury, and hence is incompetent to testify. A judgment of insanity against a person accused of crime does not establish that he is in fact insane at a later time, but merely raises a presumption of insanity contrary to the ordinary presumption that every person is sane. The question of sanity or insanity is a question of fact, and the controlling issue that determines the accountability of the accused for his acts, is the fact question as to his sanity or insanity at the time of the act charged. We overrule appellant’s contention and hold that the trial court was not in error in his ruling regarding the competency of Beville and Travillion as witnesses. Bill of Exception No. 5 sets out the testimony of the witness Beville offered by the state before the jury. It is shown that *320 the witness testified regarding his commitment to the State Hospital in part as follows: “I do not know what kind of a commitment it was, it was an alcoholic. That’s what I have been.” Beville then testified and gave a full eye witness account of the killing. Upon cross-examination, Beville was asked “Were you declared insane?” to which he replied, “The jury said I was, I don’t know whether I was or not, I don’t think I was.” Thereupon, the state objected as follows: “We are going to object to him going into this, the witness has been declared competent to testify for the court.” Appellant’s counsel, in answer to said objection by the state, then remarked, “Now Your Honor that’s a matter of law and goes to the weight, just give me a full bill and I will sit down.” The court assented to the suggestion, sustained the objection, and excluded the answer, to which appellant excepted. In his qualifications to this bill, the trial court certifies as to the hearing in the absence of the jury, and sets out the testimony and opinion of the witness heard by him in the jury’s absence, and his conclusion both from the testimony and the appearance and demeanor of the witnesses, that the witness was sane, and competent. He further certifies that the witness’ account of the happenings at the hospital on the day of the killing was understandable and intelligent, and that no testimony was offered to refute the testimony of the state’s witness regarding the competency of the witness, nor to show that Beeville was incompetent. The competency of the witness was for the court and that issue had been forecelosed against appellant prior to the examination of the witness before the jury. However, the credibility of the witness, and the weight to be given his testimony was for the jury. And upon this question, appellant had the right to offer evidence before the jury as to his insanity or the extent of his impairment of mind, and to fully cross-examine the witness upon the character of Ms commitment. See Bouldin v. State, 87 Tex. Cr. R. 419 , 222 S.W. 555 ; Mason v. State, 74 Tex. Cr. R. 256 , 168 S.W. 115 . *321 Bill of Exception No. 6 raises a like question arising in the examination of the witness Travillion. Travillion testified on cross-examination that he was adjudged insane and committed to the hospital on January 4, 1949, and was released on April 4th. He further testified that he received two shock treatments. He testified that he was not in the hospital on a 90-day commitment, but was released in 90 days. Travillion testified further that he had gone into court and had his sanity restored by judgment. He testified that he was in full possession of his normal faculties on the date of the killing and that everything that happened was clear to him then and at the time he was testifying. Appellant was entitled to cross-examine, before the jury, these witnesses whose competency he had theretofore attacked, on the question of their credibility and the weight to be given their testimony by the jury. It appears, however, that the witnesses were examined by appellant’s counsel and testified before the jury fully regarding the matter covered by the excluded answers as shown in Bills Nos. 5 and 6, and therefore no injury is shown by these bills.- We remain convinced that there was no sufficient exception to the omission from the court’s charge of an instruction to the effect that one accomplice cannot corroborate another^ No doubt this omission would have been supplied if the trial court’s attention had been called to it. The facts show an unprovoked and wholly unjustified, wilful killing of an unfortunate old man whose reason had been dethroned, and whose custody and welfare had been placed in the hands of appellant and his co-workers. It was their duty to care for him until he regained his sanity and his freedom. However, according to the evidence, his life was destroyed by his keepers in a cruel and gruesome manner. The jury meted out the extreme penalty as punishment for the murder, and we are not able to say that they were not authorized to do so under the evidence. No reversible error being shown, appellant’s motion for rehearing is overruled. Opinion approved by the court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769947. Public record. Not legal advice.