Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; and he prosecutes this appeal.
Appellant was jointly indicted with one Tom Sharp for the theft of the yearling in question. On the trial appellant filed his affidavit under article 707, Code of Criminal Procedure, for a severance, claiming there was not sufficient evidence against his codefendant, Sharp, to secure his conviction; and that he desired him tried first, for the purpose of securing his evidence. The district attorney objected to said motion for severance, stating that the State would use Sharp as a witness, and defendant could cross-examine him; if the State should not use said Sharp as a witness, the defendant would be permitted to use him. On this statement of the district attorney the court refused to put Sharp on trial first, but put appellant on trial, without at the time dismissing as to Sharp. Afterwards, and during the trial, the State closed its testimony without putting Sharp on the stand, or dismissing the case as to him. Appellant then proposed to put Sharp on the stand as a witness on his behalf, and the district attorney dismissed the case as to him, and he was sworn and testified. The court, in explaining this bill, says, "The State had the right to dismiss as to Sharp under the law, and there was no injury to defendant, Brown." There are other bills of exception involving this matter that had as well be stated here, as all of them together bring in review the legality of the action of the court overruling appellant's motion to sever. When the witness Sharp was on the stand, defendant offered to prove by him that the district attorney promised him, if he would go on the stand and swear the whole truth, that he had the power and would dismiss Sharp's case, and not prosecute him; that Sharp replied he would only swear the truth, and nothing more. Counsel for State objected to this, and the objection was sustained; and counsel for appellant excepted to the action of the court on the ground that said testimony, considering the *Page 182 statements of the witness, was material, as showing his innocence of the charge; and that he maintained his innocence notwithstanding the proffer of the district attorney. Appellant also objected to the closing argument of the district attorney, as follows: "Counsel for defense has told you that Tom Sharp's case has been dismissed, and that he will not be prosecuted for this offense, and can not possibly have any motive to swear falsely, — simply to shield George Brown, his indicted codefendant, who is now upon trial. Now, gentlemen, I know of no legal reason, if George Brown is convicted, why Tom Sharp will not be prosecuted, and also convicted, for this same offense." To which counsel for defendant objected on the ground that the case of Tom Sharp had been dismissed, and his evidence was free from the ban of suspicion; and that it was incompetent for the State in the closing argument to urge before the jury that he could and would be prosecuted for this same offense; that such remarks reflected upon the credibility of said witness; and, further, because said defendant, Brown, by his motion to sever and have Sharp tried first, was entitled under the law to have said testimony of said witness free from every ban of suspicion to swear falsely, which he would have done had Sharp been put upon trial and acquitted, and had the State not been permitted to evade the statute by a formal dismissal of the case against Sharp, the aforesaid witness." Appellant also, in his motion for new trial, files the affidavit of Tom Sharp to the effect that since the trial and conviction of appellant the district attorney has caused him to be rearrested on the same identical charge that had been dismissed against him, and shows in that connection that the reasons assigned for the dismissal of said cause were as follows: "Dismissed under article 709, Code of Criminal Procedure, for the purpose of allowing this defendant to be used as a witness in the trial of cause No. 802, and in compliance with the district attorney's announcement in said cause No. 802 at the opening of said trial." As stated before, we have thought proper to here state fully all that transpired in the court with reference to the witness Sharp, and the action of the court on the application of appellant to sever and try Sharp first.
Under the provisions of article 709, Code of Criminal Procedure, "the attorney representing the State may at any time under the rules provided in article 37, dismiss a prosecution against one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party." In the course of the trial of one of several defendants who were jointly indicted for murder and had severed in their defense, the district attorney has power to call up the case of any one of the defendants, and enter a nolle prosequi, for the purpose of making him a witness against defendant on trial. We find no case controverting this proposition, and the same was announced as the law as far back as Johnson v. State, 33 Tex. 570 [33 Tex. 570]. It appears *Page 183 from the foregoing statement that the district attorney dismissed the prosecution against Sharp. There is nothing in the provisions of article 709 and article 37 that places any character or kind of limitation upon the right of the judge, upon proper application made by the district attorney, to dismiss a prosecution against any defendant against whom an indictment may be pending. It is a well known rule of statutory construction that all the provisions of the Code of Procedure must be considered as a whole; and articles 37 and 709 must be construed together with article 707. In other words, article 707 is not a provision thrown into the procedure that can or should receive an independent construction regardless of the other provisions. Then we have the matter in this shape: Appellant complies with article 707, and asks that his codefendant be tried first, and that the testimony of said party is material for the defense of affiant, and affiant verily believes there is not sufficient evidence against the codefendant to secure his conviction. The moment the district attorney dismissed the prosecution, that moment defendant was entitled to the testimony of the witness Sharp. Why not? There is no prosecution pending against him. Does the bare fact that he once had an indictment against him, and that he might be reindicted, force the State to the necessity of trying a party against whom there is not sufficient evidence? The affidavit for severance itself states there is not sufficient evidence against Sharp to convict. The State concedes that fact, and dismisses the case against codefendant Sharp. We can not presume that the officers of this State act corruptly, nor can we presume that the dismissal of a case would be done for other than proper purposes. But if it has been so done, — and there is nothing in the record here to show that fact, — then the witness is placed in as good position as appellant can demand under the laws of this State. The State made no contract not to prosecute him; and, if it did, this would be a contract the witness himself could insist upon being carried out in good faith. Appellant is not in the attitude to complain of the matter. Therefore the mere fact that the witness, at one time codefendant with appellant, subsequent to the trial and conviction of appellant, was indicted, is no argument whatever in behalf of appellant; nor does it show that the right of severance has been violated. If appellant's position is correct, it would present a very anomalous condition. The record shows appellant was indicted with the witness Sharp for the theft of a yearling. The district attorney honestly states in writing to the court that he can not secure a conviction against defendant Sharp. Upon this statement the court dismisses the case. This is clearly within the spirit and letter of article 709. Nor has appellant any right to complain in the premises, since he secured the testimony of the witness Sharp. Suppose it should develop after the trial of appellant that divers and sundry witnesses knew facts going to prove conclusively that codefendant Sharp was *Page 184 guilty, could appellant in this case be heard to say that the State could not reindict Sharp? Certainly not. We know of no law that guarantees a defendant that any witness should have the ban of a prosecution altogether and absolutely removed from said witness. When a defendant is not guilty, or if the evidence is not sufficient to secure conviction, the district attorney is in honor and in law bound to dismiss the prosecution; and this right is not dependent or contingent upon any right of another or anyone's interest; and, having availed himself of the provisions of the statute in doing this, the district judge and attorney are not to blame, nor can their action in the premises be called in question under the provisions of article 707, as appellant has attempted to do. It is seriously insisted that the district attorney, by this process, can hold the sword of Damocles over the head of the witness testifying, and thereby deprive appellant of the free and untrammeled testimony of the witness Sharp. This is no argument against the condition, nor is it a reason for the abrogation of article 709. If the witness Sharp has guilty knowledge of the theft of the yearling, either as principal or an accomplice, this guilty knowledge would probably deter him from telling the truth about the matter, whether indicted or not. If the prosecution is dismissed against him, he is presumed to have some sense of shame left; and it does not occur to us that he would readily agree to publish his own moral degradation; and appellant would have as much right to be relieved from the latter as he would from the prosecution. In King v. State, 35 Texas Criminal Reports, 472, as to a similar question, we used this language: "This view of the question is settled by article 91, Penal Code, which reads: `Persons charged as principals, accomplices or accessories, whether in the same indictment or by different indictments, can not be introduced as witnesses for one another; but they may claim a severance, and if any one or more be acquitted, they may testify in behalf of the others.' Here is a provision against their testimony before acquittal or nolle prosequi; and a provision that they may testify upon the severance; and this provision applies to all persons charged, whether as principals, accomplices, or accessories, or whether charged in the same indictment or in separate bills." This, as we understand, is a clear recognition of the right of the State to dismiss the prosecution, and the relative right of appellant to avail himself of said dismissal, and have the testimony of his codefendant in his trial. In Shaw v. State, 39 Texas Criminal Reports, 174, instead of dismissing the prosecution when application for severance was filed, the district attorney stated that he would permit the codefendant to testify; and it appears from an inspection of the case that the prosecution was not dismissed against him. We think the principle laid down in the Shaw case was correct, — that this should not be done. Whenever the application for severance is filed, two alternatives are open, — grant the request, else dismiss the prosecution, so appellant can secure the testimony. But certainly such dismissal must not have *Page 185 coupled with it a contract never, under any circumstances or conditions, to reindict the party whose case is dismissed. The party whose case is dismissed can not ask this right. Then how can another party, interested only in his testimony, demand this right? Appellant offered to prove by witness Sharp, who had been indicted for the same offense with appellant, and against whom the prosecution has been dismissed, that the district attorney promised him, if he would go on the stand and swear the whole truth, that he had the power and would dismiss Sharp's case, and not prosecute him; that Sharp replied he would only swear the truth, and nothing more. We think this testimony was material, and the court erred in refusing to admit the same, as going to show the innocence of witness, and to that extent would exculpate him from any suspicion, or any guilty participation in the theft, thus rendering him more credible before the jury.
Appellant also complains of the remarks of the district attorney, but, as no special charge was presented asking the court to instruct the jury to disregard it, the same can not be reviewed.
Appellant complains that the court should have given the charge on accomplice testimony as to the witness Sal Armstrong. Without reviewing the evidence indicating Armstrong is an accomplice, we think appellant's contention is correct, and the court should have given this charge.
The examination of the witness Melvin Cude was unauthorized. Testimony taken before the grand jury is admissible solely where the truth or falsity of the witness is in question. In Spangler's case, 41 Texas Criminal Reports, 424, while we held it was not reversible error to use the grand jury testimony for the purpose of refreshing a witness' recollection, still the method pursued in that case was improper. In this case, as is well said by counsel in their brief: "If the State used the paper for the purpose of impeaching its own witness, this was improper. If counsel used the paper for the purpose of testing the memory of the witness with the view of impeaching his testimony, this was improper. If he used the paper to intimidate the witness, this was improper. If he used the paper as the basis of the cross-examination of his own witness, yet refused the use of the paper to the defendant and his counsel, this was improper." Evidently the paper in question was used for some or all of these purposes.
We do not think the court erred in refusing to give the requested charge as to the animal being in its accustomed range. The testimony showed that the alleged stolen animal at the time was in the pasture of Pryor; but it also showed that Slaughter's cattle, whose pasture adjoined Pryor's, were frequently in the latter's pasture, and said pasture might be regarded as the range of the alleged stolen animal.
It further occurs to us that a new trial should have been granted, under the peculiar circumstances connected with the testimony of the *Page 186 witness Melvin Cude. The witnesses Vinton and Saltillo both testified for defendant to the effect that they were present when Brown and Sharp roped the yearling, and that it was not a Diamond T yearling, as claimed by the State, but a V bar yearling, as claimed by defendant. To overturn the force of this testimony, the State showed by the witness Cude that he took dinner with these two witnesses at a point some miles distant from where the animal was roped at the time these witnesses claimed they were present at the roping. This testimony of Melvin Cude was very material as destroying the effect of defendant's two witnesses. Subsequent to the trial, witness Cude made an affidavit that he was mistaken as to the day on which he took dinner with said witnesses Vinton and Saltillo; that he did not take dinner with them on the day of the theft, but on a different day. This was in the nature of newly discovered evidence; and, concede that the affidavit of Cude is true, showed very clearly that false testimony was used against appellant on a very material issue in his case. This, though unintentional and innocently done, was none the less effective in destroying material evidence for appellant.
There are some other assignments, not necessary to be discussed, but for the errors pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.