Hilly v. State

CONCURRING OPINION ON MOTION FOR REHEARING. I concur with my brother Lattimore in his view that no reversible error was committed by the trial judge in refusing to grant appellant's motion to withdraw his announcement and continue the case on account of surprise at the testimony of the witness Turrentine. The case had been continued one time by appellant on account of the absence of this witness. On additional process to Brazoria County by appellant he had not been served. On the 14th day of February the district attorney had process re-issued for all witnesses both for the state and accused and process for Turrentine was issued to Harris County. It was served on the 16th day of February, at which time the witness made affidavit before a notary public in Harris County that he had no funds to enable him to respond to the process. The sheriff's return shows he furnished the witness $13.20 to pay his expenses to court in obedience to the subpoena. The process with the return thereon was filed in court on the 18th day of February. Counsel for appellant seems to have had no information of this process. When the case was called for trial Turrentine's name was not called as a witness by either side, but announcement was made by appellant without calling his witnesses. An examination at that time of the process on file would have disclosed that the witness had been served, money advanced, and that he might be expected to be present. In appellant's motion to withdraw his announcement and continue he avers that the state's attorneys and officers conspired to conceal the presence of said witness for the purpose of springing a surprise on appellant. Upon that point the record shows that S. F. Leslie, who had been employed to aid in the prosecution knew that process for this witness had been issued to Brazoria County at the instance of appellant, but had no knowledge of any additional process and had never seen the witness Turrentine. On the evening of the 18th of February Leslie went to his farm. If this trip had anything to do with the present case or with the witness the record does not disclose it. While at his farm he was informed that Turrentine was at a Mr. England's. Leslie went there, talked with the witness and then learned what the witness would testify. The witness wanted to go to Mr. Eldridge's who lived on Leslie's place, as he was a friend of Eldridge, and Leslie took the witness there at the latter's request, and told Eldridge to bring the witness to court. Leslie says that Eldridge was at work on the morning the case went to trial and that he (Leslie) told the sheriff at noon to get the witness in, but as the sheriff did not do so, that evening after court adjourned he (Leslie) took the district attorney and went out and brought the witness to court. The sheriff makes affidavit that when the case was called for trial appellant's attorney did not call the names of his witnesses; if he had done so or otherwise made any inquiry he would have informed him Turrentine would be present as a witness; that the witness was about a mile south of Bonham at Mr. Eldridge's, and that at noon before the jury was completed the state's attorney asked him to go and get Turrentine, and that he would have done so and would have had him present when the other witnesses were sworn but thought it would take all day to get the jury and for that reason he did not go after the witness or send for him at that time. Unless the failure of the officer and of the state's attorney to apprise counsel for appellant that Turrentine was available may be regarded as deception practiced on appellant it is doubtful if the facts appearing would authorize such conclusion.

After Turrentine had testified favorably to the state and contrary to the statement which had been theretofore made by him appellant filed his motion to withdraw his announcement. After setting out the facts stated by said witness in the voluntary statement originally made by him, and that his evidence given upon the trial was contradictory thereto, and antagonistic to appellant, the reasons given for requesting a withdrawal of his announcement follows:

"That this defendant is and was surprised at the testimony given by such witness on this trial, and that if said defendant had a reasonable time, he could and would procure evidence contradicting the evidence of said Carl Turrentine given at the trial of said cause, that such evidence could be procured among neighbors of defendant residing in Fannin County, Texas, about seven miles from Bonham; that said testimony could be procured if defendant had time in Harris County, Texas, from among the associates of defendant; that if defendant had time and opportunity, he could procure from Harris and Brazoria Counties evidence establishing that said witness had a bad reputation for truth and veracity; that the defendant, if he had time, could establish by witnesses residing in Fannin County that the said witness had a bad reputation for truth and veracity."

It will be observed that the name of no witness is given, and no fact or circumstance is stated, which would advise the court with any degree of certainty what appellant could prove or what benefit would accrue to appellant by a continuance of the case. Appellant had expected to use the witness Turrentine and had doubtless made no inquiry with reference to supporting or impeaching him up to the time he testified in the case. It seems apparent that the broad statement made in the application to withdraw the announcement was only a suggestion that if appellant was given time he might be able to find somebody by whom he could contradict the witness or who would testify that his reputation for truth and veracity was bad. It evidently was not the purpose of Article 551, C. C. P. (permitting the withdrawal of announcement and postponement or continuance of cases) to put accused in a better position than he would have been had he known what a witness would testify before the announcement of "ready." If appellant had ascertained beforehand that Turrentine would be present and would give the testimony which he did relate before the jury had filed an application for a continuance containing the indefinite statements and with no witnesses named as appears in his motion to withdraw, and then for impeachment purposes only, the court's action in refusing such application could not have been held erroneous.

The true rule, we think, is that laid down by this court in Marta, et al. v. State, 81 Tex.Crim. Rep., 193 S.W. 323, as follows:

"When surprise at the testimony of a witness is relied on as a ground for continuance, the court must be put in possession of some fact or circumstances, where by granting time the person will be enabled to meet or at least minimize the force of the testimony. As no such allegations were contained in the motion made, there was no error in overruling the application. Davis v. State, 60 Tex.Crim. Rep.; Loveless v. State,40 Tex. Crim. 221, 44 S.W. 508; Williams v. State, 48 Tex. Crim. 325. "

In addition to the cases cited in the foregoing quotation see Powers v. State, 83 Tex.Crim. Rep., 204 S.W. 325. That this is the correct rule we think is demonstrated by the opinion in Hodde v. State, 8 Tex.Crim. App. 382. In that case the witness Shelin had attempted to fix a criminative fact upon appellant by testifying that he had seen him at "Sommers Gin" at a certain time. The defendant immediately sent an officer with process for Sommers, the proprietor of the gin, and asked for a postponement of the case until the witness could arrive. This was declined and the court held it error. Here the witness was named, process was dispatched for him, and upon motion for new trial an affidavit from the witness was attached showing that he would have given evidence combatting that which had been received from Shelin. To the same effect is Withers v. State, 23 Tex.Crim. App. 396. The prosecuting witness (one Burris) had testified at a former trial of the case locating the scene of the offense (which was a charge of exhibiting a gaming table) "in a room over Paschall's saloon" in the town of Denton. Upon the second trial he located the place of the offense "in Wither's saloon on the west side of the public square." Counsel for appellant claimed surprise and asked permission to withdraw his announcement and that the case be postponed to enable him to get the testimony of four named witnesses, residents of the county, by whom he asserted he could prove that at the time and place testified to by the witness Burris defendant did not exhibit a gaming table, but only engaged in a game of poker. This court held that under those circumstances the court was in error in refusing appellant's application. It will be seen that in both the Hodde and Withers cases the names of the witnesses were given by whom appellant contended he could show that the testimony at which he claimed surprise could be shown to be false.

In the present instance the names of no witnesses were given and no facts or circumstances stated which enabled the trial court, or which enables this court, to say with any assurance that appellant would be in a position upon another trial to produce testimony to break the force of that given by Turrentine. To decide that the showing was sufficient to have justified the withdrawal of announcement and continuance of the case would be equivalent to holding that on a mere surmise that appellant might possibly find some impeaching and contradictory testimony the trial should be halted and a continuance granted.

I believe this would be going further than the statute contemplated or than any authority which has come to my attention in reviewing this question would authorize.

I therefore concur in the opinion overruling appellant's motion for rehearing.