DISSENTING OPINION ON MOTION FOR REHEARING. Appellant shot and killed Omer Rhodes on the 7th day of August, 1924. On the trial, which took place on the 19th of February, 1925, the wife of the deceased testified that she was an eye-witness and gave evidence to the effect that the homicide was without justification or excuse. Appellant testified to facts justifying the homicide. One, Turrentine, testified upon the trial that he was an eye-witness and gave testimony conflicting with that of the appellant and coinciding with that of the state's witness mentioned.
After announcing ready for trial, appellant sought to withdraw his announcement and to obtain a postponement. At a former term of court appellant had secured a continuance on account of the absence of Turrentine. After the homicide Turrentine had gone to another county in the state to which the appellant had caused the issuance of a subpoena which had not been served. It seems that the court, at the time the continuance was granted, deemed the diligence to secure the witness sufficient and found his testimony material. Later efforts made by the appellant and his counsel to learn the whereabouts of the witness had been futile.
According to the averments in the motion, the witnesses for both the state and the defendant were called to the bar and sworn; that Turrentine was not present; that no motion to continue because of his absence was made for the reason that the former continuance having failed to secure the service of subpoena, it was deemed useless to present an application.
It is averred in the motion that soon after the homicide, Turrentine had voluntarily made an affidavit to facts corroborating the appellant's theory and tending to exculpate him; that after the trial had progressed until late in the afternoon of the day upon which it began, appellant's counsel learned in a conversation with one of the counsel for the state, employed by the private prosecution, that Turrentine had returned to the county and would be present at court. Counsel for the appellant was not informed and did not know that Turrentine would give testimony prejudicial to the appellant. A night session was held and the witness Turrentine appeared at that time, and counsel learned from him for the first time that he had made an affidavit repudiating the one he had previously made, and that he would swear to facts contrary to his former affidavit, prejudicial to the appellant and favorable to the state. Appellant at once gave notice that he desired to withdraw his announcement of ready *Page 447 for trial and moved for a continuance or postponement. The court declined to stay the proceedings pending the preparation and presentation of such motion, the character of which was communicated to him, but said that he would hear it on the following morning. This procedure was unsuccessfully opposed by the appellant, and the witness Turrentine was called by the state and testified adversely to the appellant in the particulars above indicated. On the following morning appellant presented his motion as above mentioned, setting up the facts detailed above, and in addition thereto, averred that the witness Turrentine reached Fannin County on the 18th day of February, 1925, his presence being unknown to the appellant or his counsel but known to the state's attorneys.
It is further averred that the witness was concealed upon the farm of one of the attorneys for the private prosecution and the knowledge of his presence and the change of testimony was withheld from the appellant and his counsel; that in ignorance of his presence or his change of testimony, appellant made his announcement of ready for trial upon the assumption that the witnesses called and sworn constituted those who would be used upon the trial; that he was impressed with this assumption by the fact that the witnesses, at the instance of the state, had been called, sworn and put under the rule.
The motion charged that the withholding of the information that the witness Turrentine would be produced and that he had changed his testimony was purposely done to mislead the appellant and his counsel and induce them to make the announcement of ready to go into the trial.
It is also averred that the production of said witness and the change of his testimony was a surprise to the appellant and his counsel.
It is further averred that while the change of the testimony of the witness Turrentine would have been available to the state in opening its case, they withheld it for rebuttal and introduced it after appellant had closed his case, thus emphasizing the surprise and the result of the injury.
In his motion the appellant averred that if given reasonable time he could and would produce evidence contradicting that given by Carl Turrentine at the trial; that such evidence could be procured among the neighbors residing in Fannin County, about seven miles from Bonham; that similar testimony could also be procured in Harris County; and that if given time and opportunity he could procure evidence from Harris and Brazoria *Page 448 Counties establishing that the witness Turrentine had a bad general reputation for truth and veracity; that he would also bring similar testimony touching the reputation of Turrentine from Fannin County; that all capable members of his family and his counsel had been present during the trial, and that there had been no time or opportunity for a search for the evidence mentioned during the trial after the necessity for it became known to the appellant.
The motion by written pleading was controverted by the state upon the averment that process had been issued, served and returned upon the witness on the 18th day of February; that the appellant made his announcement of ready for trial without calling the witness and without examining the process; that about an hour after the introduction of the testimony began, appellant's counsel became aware that Turrentine would be used as a witness for the state and that before the close of the trial he was sworn as a witness and placed under the rule.
On the trial, one of appellant's attorneys testified in accord with the averments in the motion. The attorney employed by the private prosecution also gave evidence. From the testimony of the latter, it appears that he had made some efforts to locate Turrentine, but did not know of additional process; that on the day before the trial he learned of the whereabouts of the witness and talked to him, and learned that his testimony would be in accord with that which was subsequently given by the witness on the trial. Turrentine testified on the trial that, responding to the subpoena served upon him in Harris County, he arrived on the 18th of February. He said he wanted to get even with the appellant because of threats; that on his arrival he went to the home of one, England, where he later saw the attorney for the private prosecution, at whose request the witness went to the farm house of the attorney and from there to the home of Eldridge in company with the attorney. According to his testimony, Turrentine was to stay with Eldridge, who was an acquaintance; that he did remain until the evening of the day on which the trial took place, at which time he was informed by the attorney mentioned that he would be wanted at court at seven o'clock. None of the attorneys other than the one mentioned above testified concerning Turrentine.
Article 551, C. C. P., 1925, reads thus:
"A continuance or postponement may be granted on the application of the state or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some *Page 449 unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial can not be had."
Our statute on the subject of surprise seems in substance to embrace the practice applied in most of the American jurisdictions. See Ency. of Law Proc., Vol. 9, p. 189. The fact cases are meagre. However, there are some laying down controlling principles and some are upon illustrative facts.
Discussing the matter, Judge Hurt, in Lindley v. State, 11 Tex. Crim App. 285, used the following language:
"We take this occasion, however, to state that it is the duty of those representing the state to treat the accused with 'fairness, and to inflict injury at the expense of the prisoner is no part of the purpose of the law.' Curtis v. State, 6 Cold. 9. The state cannot afford to engage in the work of chicanery and fraud, especially to convict of felony one of her citizens. When she demands the life, liberty or property of her citizens, her procedure should be bold, liberal and upon high grounds."
In the opinion citation is made to the case of March v. State, 44 Tex.Crim. Rep., wherein similar expressions are found concerning artifice in inducing the accused to go to trial on the impression that an important state witness was absent.
In Withers v. State, 23 Tex.Crim. App. 396, a reversal was ordered because of surprise from a change of testimony given by the prosecuting witness on the present trial from that of a previous trial.
In the Hendrick case, 47 Tex.Crim. Rep., counsel for the state stated to counsel for the accused that no more witnesses to sustain a certain fact in issue would be introduced by him. Acting upon this announcement certain witnesses for the accused were dismissed. Subsequently, state's counsel put upon the stand, contrary to his announcement, a witness to prove the fact in question. This was regarded as a surprise. The case was reversed upon other grounds, but in the course of the opinion the court said:
"This character of practice should not be tolerated by the court; and it may not be necessary, as the case will be reversed on other grounds, to decide whether or not appellant has placed himself in the attitude for reversal upon this ground, because no application for continuance was made at this point. Matters of this sort have been condemned by the appellate courts of this state. March v. State, 44 Tex. 64; Eldridge v. State, 12 Tex.Crim. App. 208; Lindley v. State, 11 Tex.Crim. App. 283." *Page 450
In Hodde's case, 8 Tex.Crim. App. 383, a reversal was ordered because of the refusal of the court to delay the proceedings to give the appellant an opportunity to secure the testimony of a witness to contradict that of a state's witness which surprised the accused. Other illustrative cases are collated in the notes in Ency. of Pleading Practice, Vol. 4, p. 863, par. 15. See also Vernon's Tex. P. C., 1925, Vol. 1, p. 472.
It is the opinion of the writer that the averments in the motion which were not controverted were sufficient to entitle the appellant to withdraw his announcement of ready for trial and to postpone the hearing for the purpose set out in the motion. That by the procedure set out the appellant and his counsel were surprised by the unexpected occurrence after the trial began seems to the writer not open to question. It appears likewise manifest that by no reasonable diligence could the surprise have been averted. For the purpose of the motion it is conceded that the witness Turrentine was an eye-witness to the homicide; that immediately after the homicide he signed an affidavit, the effect of which was to put the appellant in the right; that he left the county, and that subpoena was issued for him; that on the eve of the trial he gave testimony refuting that formerly made and putting the appellant in the wrong; that neither the appellant nor his counsel knew of the witness' return or his change of testimony at the time the announcement of ready was made; that upon learning the facts of his change of testimony, they promptly sought to withdraw the announcement.
According to the averments in the motion, all reasonable efforts were made subsequent to the failure to secure service to ascertain his whereabouts. He arrived at some time before the trial began. This was known to state's counsel to whom he had delivered the information changing his former sworn statement. Appellant, with knowledge of state's counsel, went to trial in ignorance of the presence of the witness or the change of the testimony. From the averment in the motion it also appears that by postponement he would be able to contradict the witness and impeach his reputation. The article in question, (551 supra) is not controlled by the same rules that apply to an application for a continuance made before announcement. The record in the present case shows that the surprise came to the appellant while he and his family and his counsel were engaged in the trial. The court declined to suspend the operations but proceeded into the night. The witness Turrentine was not called *Page 451 to testify until after the defendant had closed his testimony. To demand the same precision with reference to the names, residences and testimony of witnesses by whom such an emergency could be met under such circumstances, in the opinion of the writer, would be foreign to the letter and spirit of the statute upon which the appellant relies, and in which it is said: "A postponement may be had when the surprise is such that a fair trial cannot be had."
Believing that the circumstances before the trial court were such as should have resulted in granting the motion to postpone, the writer feels constrained to dissent from the contrary decision.
MORROW, Presiding Judge.