This case was submitted on motion for rehearing sometime since. We find an original motion, an amended motion and a second amended motion supplementing all motions heretofore filed, presenting in the hundreds of pages thereof practically all the matters brought up in original presentation. In this record are more than seventy bills of exception, consideration of which upon the original hearing led us to discussion only of those deemed to raise debatable questions. They have been re-examined in the light of the authorities and arguments, too extended and numerous to mention much less to discuss. We did not discuss in our former opinion, nor will we here, all the points raised in the various bills which we find in the record.
The two most serious questions presented were those relating to the refusal of the court to allow appellant to personally cross-examine three witnesses, as set out in bills of exception Nos. 55, 56 and 57; and a like refusal of appellant's motion asking that the court require the sheriff of Williamson county to give appellant and his attorneys a chance and opportunity to interview and talk to one Martinez, a witness in the case alleged therein to be under the control and in the custody of said sheriff, — as set out in bill of exceptions No. 2.
To get the exact setting of the ruling of the trial court refusing appellant the right to cross-examine the witnesses referred to, we state that the record shows in this regard that appellant attached to his motion for new trial in the court below, the affidavit of Manuela Guzman in which she affirmed that her testimony on the trial of this case to the effect that she washed bloody clothing at the home of appellant's father and mother where he lived, the day after the disappearance of Dr. Ramsey, the deceased, — was untrue; further that upon the hearing of said motion for new trial said witness appeared in person and repudiated the affidavit mentioned, and re-affirmed her testimony as given upon the trial; that thereafter the State offered and the court heard three witnesses, to-wit: one Hunt, Mrs. Ramsey and Mrs. Koepsel who, according to the bill of exceptions taken to the refusal to allow personal cross-examination in case of each of said witnesses, testified to certain matters which, in substance, were corroborative of and supported the testimony of Manuela Guzman as given upon the main trial and the hearing of this motion. *Page 591
Appellant contends that the refusal to permit him to cross-examine these three witnesses offered in corroboration of the Guzman woman, was in violation of that portion of our Bill of Rights which gives to a defendant the right to be heard by himself or by counsel, or both.
Sec. 10 of our Bill of Rights sets out a number of things which are guaranteed to one accused of crime, such as a speedy public trial by an impartial jury; a right to demand the nature and cause of the accusation against him; that he shall not be compelled to give evidence against himself; shall have the right to be heard by himself or by counsel, or both; shall be confronted by the witnesses against him; shall have compulsory process for witnesses, etc. No one of these guaranties but has been the subject of judicial interpretation and limitation, and this is necessarily so in the very nature of things. Just when is a trial public, is a question for the courts. Just what is a speedy trial, is also a question for their determination. What is an impartial jury, is also a judicial question. How far may one go in demanding a copy of the accusation against him, and what route must he take to get it, and can it under any circumstances be denied, are also for the courts. The courts and legislature say that statements and acts of the accused become in certain circumstances admissible against him. Judicial interpretation has also been had upon the proposition that when one who has been once confronted by a witness and the privilege of examination accorded, what was then said may be used in evidence against him without further confrontation. Whether certain acts and declarations of the accused offered in evidence against him, amount to compelling a witness to give testimony against himself, — is also for the courts. Without denial of the right of compulsory process for his witnesses, the legislature and courts have placed limitations and laid down rules regarding how and when such process must be applied for, and it has been held that when not asked at the time and in the manner commanded by law, the right to such process will not be granted. These and other matters pertaining to the different parts of said Sec. 10 of the Bill of Rights have all been before the courts many times and judicial interpretation has been placed upon all said questions from one angle or another, and this seems in reason and justice to meet the command of our fundamental law without, in many cases what might seem to be an exact literal compliance with the letter of the law, but which in the broader comprehension grants all that the spirit and purpose of the law require. *Page 592
Turning to the particular guaranty of said bill here involved which nakedly says: "He shall have the right of being heard by himself or counsel, or both," the question arises, — Does this mean that one accused of crime shall have the right to demand that he be heard in person whenever any question connected with his case is before the courts, or juries, or grand juries, and no matter whether the matter under discussion be one of law or fact, or how many counsel the accused has to represent him? Is the only criterion in the decision of this question to be: What does the accused want to do in this particular matter? We think not. Tooke v. State, 23 Tex.Crim. App. 10, is cited by appellant in his motion. In that case this court held that the particular provision of the Constitution under discussion related only to the right of the accused to be heard in a nisi prius trial, and that it was not meant to give the accused the right to be personally heard before the appellate court when his case was there presented; but this holding, alike with every provision of the statute or Constitution, must be given a construction in line with its reasonable intendment. Within a year previous to this writing, two men convicted of crime have personally appeared before this appellate court and argued the merits of their several appeals. This to show that this court holds that where there is no imperative right, to be granted upon the capricious demand of one convicted or accused, still there may arise cases when it would become proper to permit the personal appearance before the appellate court of the accused. Certainly if one charged with crime had no counsel he could not be denied the right to be heard by himself upon his trial, nor could he be denied the right to give his version of the facts and be heard, to this extent in any case; likewise, if within proper limitations he desired to address the jury on the facts upon his trial, it would not be proper to deny this privilege. The conduct of any trial within those bounds fixed by law, must of necessity be left largely to the discretion of the trial judge. Must he allow both the accused and his counsel to speak at will and ad libitum upon each point debated during the trial? Must both be heard to examine or cross-examine all or any witness as they choose? Notwithstanding the fact that there exists well settled and defined rules governing the examination of witnesses, known to attorneys, and observed by them under the direction of the court and under penalties for contemptuous non-observance, must the court at the arbitrary behest of a prisoner well armed with counsel, at such stages of any trial as pleases the accused, submit *Page 593 the examination or cross-examination of witnesses to the personal conduct of the accused for no other reason stated save that the Constitution uses the word "both" in Sec. 10 of the Bill of Rights? We think not.
The matter immediately involved here was one before the court and not a jury; it was not the actual trial, a verdict of guilty having been returned, but was a hearing upon the motion for a new trial, which was addressed solely to the court. Appellant had able counsel, two of whom were present at the time; the woman Guzman whose affidavit contradicting her testimony had been secured and appended to the motion, had appeared personally and repudiated the affidavit, and the State, as best we gather from the bills of exception, offered three witnesses to give testimony corroborative of the Guzman woman, when appellant demanded the right to cross-examine them, resting such demand solely on the constitutional provision referred to. No showing was made or attempted that any testimony of said witnesses was of matters concerning which appellant had personal knowledge, or that by his personal examination more or different facts favorable to him would be elicited. Absolutely no reason addressed to the conscience of the trial judge, however scrupulous in protecting the rights of the accused, was advanced. As stated, the demand rested solely upon the proposition that the Constitution gave to the accused the right to be heard by himself, or his counsel, or both. In our opinion the court properly refused the request, advising appellant that through his counsel he could ask any question he desired. The wisdom of such rule is made evident and manifest in this case by reason of the fact that before this court appears arguments and motions bearing evidence of personal preparation by appellant himself which contain statements of facts wholly dehors the record, and which would not be tolerated in counsel. Appellant was heard by counsel, and in those matters appropriate, — by himself, — but the record fails to show that he was deprived of any right or any advantage by the refusal of the court to allow him to cross-examine these witnesses upon the hearing of the motion for new trial.
We held it erroneous for the trial court to refuse appellant's motion to require the persons having charge of witness Martinez to allow appellant and his counsel to talk to said witness with reference to this case, but held such refusal not error grave enough under the facts to justify a reversal. Appellant strenuously insists that we were right in holding this matter erroneous, but that we were *Page 594 wrong in declining to reverse therefor. To get the exact setting of this complaint, we state that before announcing ready for trial, and on the day set for such trial, appellant moved the court in writing to order or require the persons having custody and charge of witness Martinez to give appellant and his attorneys an opportunity to interview "said witness in regard to this case to the end that this defendant and his attorneys may be prepared to announce whether he is ready for trial, and to the end that they may know how and in regard to what matters to cross said witness when he has testified for the State." In our former opinion we generally discuss the question of the error of a refusal to allow an interview with a witness under the control and in the custody of the State, but it is the purpose of the writer to confine, if possible, his review to the exact contentions now made in the instant case, and to the propositions contained in the motion, viz.: the right of appellant to an interview sought on the day the case was set for trial, with the dual purpose of finding out whether to announce ready for trial, and of being able to know how or upon what matters to cross-examine the witness when he has testified for the State. In other words, we are called on to view this motion under the facts and surroundings and in the light same was presented to the trial judge and to decide whether what he did was within his duty and not any abuse of same. The witness was in jail and had been continuously since return of indictment, as far as this record discloses. The venue of the case had been, on January 8, 1927, changed from Live Oak county to Williamson county. We know judicially that Live Oak county is in south Texas and that Williamson county is approximately two hundred miles distant. Presuming the officers to have done their duty as required by law, this witness had been within the jurisdiction and under the control of the judge of the trial court some three weeks prior to the day set for trial, and when on January 31st, the day set for trial, this motion was made, all matters pertaining thereto were before him. It would be well within his discretion to have overruled an application for continuance or postponement then made, if based on information obtained as the result of an interview then had, for the reason that diligence could not have been thus shown. An interview then granted with the witness followed by an application for postponement or continuance, based on what witness may have then said, would not address itself to the judgment of the court as diligence, when such interview might have been had three weeks before, and process issued to Live Oak county *Page 595 or any other place as a result. We would have to hold such refusal of the court correct if upon this showing the matter was brought before us for review. This seems to have been in the mind of the lower court, as it appears from the bill of exceptions that when the motion was first presented, he declined to pass on same and refused to do so until he had heard appellant's announcement; and appellant having announced ready under protest, the court overruled said motion. In so far as the part thereof relating to appellant's wish for the interview in order to decide whether he was ready for trial, we have no doubt of the correctness of the action of the court below.
As to the supposed error in overruling that part of the motion seeking to have an opportunity to talk to said witness in order that appellant and his counsel might know "How and in regard to what matters to cross said witness when he has testified for the State," this is a rather remarkable proposition. No authorities appear to be cited and we know of none which would make imperative the grant of an interview whose sole object was that the attorneys "might know how and upon what matters to cross-examine." The character and extent of cross-examination in any event depends entirely on what the witness swears upon the witness stand, and the right to so cross-examine then first arises, and we confess our inability to grasp just the point intended or aimed at by this part of the motion. If appellant and his counsel were ignorant of the testimony of the witness, and desired to talk to him in order that being so informed they might prepare to meet, by explaining or overcoming, such testimony, we entertain no doubt of their right to such interview if sought in due time and manner, but it appears here that appellant and his attorneys had heard this witness give his testimony under oath prior to the making of said motion, and no suggestion is made that they were not reasonably in possession of what his testimony would be. It appears also that at such former time of hearing the testimony of said Martinez, appellant was accorded to its fullest extent his privilege of cross-examination; also that he was again accorded the same on this trial. Our statutes expressly provide for continuance or postponement of a case at any stage of its hearing, when it is made to appear to the satisfaction of the court that some unexpected occurrence has arisen since the trial began, which no reasonable diligence could have anticipated and which would prevent a fair trial. No such application was made. Appellant further had the right and opportunity in connection with his motion for new trial to set up and demonstrate that *Page 596 by some ruling of the court, or other occurrence during the trial, he has been injured. Nothing of this sort here appears in relation to the denial of his motion.
We thus are confronted, upon this matter, with the fact that appellant sought and was denied an interview with the witness desired for the reason first above discussed, and for the further reason that he might know how and upon what matter to cross-examine him, a proposition of very doubtful soundness when demanded as a matter of right; and further that when the witness gave his testimony appellant did cross-examine him without limitation, and that he has at no time said or shown that he would have been benefited as the result of said interview. In no way is there any showing in this record that the testimony of Martinez as given on this trial was in anywise different from his testimony as given on the former trial, which was all known to appellant and his counsel. Neither before the trial began, based on the refusal of the interview, and his knowledge of what the witness had formerly sworn, nor at any time during the trial, based on what the witness then swore, nor in the motion for new trial, — was there any effort to show facts which would lead us to believe that such interview with the witness would have been to appellant any advantage either in deciding whether he would announce ready for trial, or in deciding upon what he would cross-examine the witness. It logically follows that upon further consideration of these matters we are still of opinion that no error injurious to appellant appears. We believe the other complaints again reviewed were sufficiently disposed of and discussed in our former opinion. So believing, the motion for rehearing will be overruled.
Overruled.
ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.