Holmes v. State

Willson, Judge.

I. There was no error in striking out the special defense pleaded by the defendant, nor in rejecting testimony offered by him i.n support thereof. No such plea is provided for by our Code, nor have the courts of this State recognized such a plea as valid, either in abatement or in bar of a prosecution. There are but two special pleas provided for by the Code; that is, former conviction and former acquittal, and these, it is declared, are the only special pleas which can be heard for the defendant. (Code Crim. Proc., art. 525.)

. There are two other special pleas, however, which, although not provided for by the statute, are held to be permissible because they are fundamental and beyond the power of the Legislature to deny; they are a plea to the jurisdiction of the court, and a plea of former jeopardy. (Lott v. The State, 18 Texas Ct. App., 627; Powell v. The State, 17 Texas Ct. App., 345.) And it has been held by this court that an agreement made by the attorney representing the State, with a party charged with crime, that he will not be prosecuted for such crime if he will testify fully and truthfully all he knows in relation to the guilt of others of the same crime, may be pleaded in bar of a prosecution against such party for said crime, and that such agreement will be a bar to such prosecution if the defendant has in good faith performed his part of the same, or if his performance thereof has been prevented by the State. (Bowden v. The State, 1 Texas Ct. App., 137; Hardin v. The State, 12 Texas Ct. App., 186; Harris v. The State, 15 Texas Ct. App., 629.) In neither of the cases cited is it stated by what authority such a plea was entertained. In Bowden’s case it seems to have been regarded by thó court as a plea to the jurisdiction. In Hardin’s case it is said the plea was interposed “ by way of estoppel,” and it is conceded in the last named case that “ the great weight of authority is to the effect that this plea cannot be interposed, but that the defendant must look to executive clemency.” In these cases it seems to have escaped the attention of the court that our Code prescribes the only pleadings which can be entertained, and that such a plea does not come within any provisions of the Code. It is certainly not a plea of former jeopardy, and unless it be a plea to the jurisdiction of the court, as intimated in Bowden’s case, it is not such a plea as can be interposed by authority of either the Code or the decisions of the courts.

The writer entertains serious doubts of the correctness of the decisions referred to. He is inclined to the opinion that such a plea cannot be interposed either in abatement or in bar of a prosecution, because it is not so provided by our Code, and is neither jurisdictional or fundamental in its nature. Such matter, in his opinion; can only be addressed to and entertained by the pardoning power. ■ Mr. Bishop says: 11 Doubtless, in most cases, the mere fact that an accomplice testifies as a witness for the government, freely and fully acknowledging his own participation in the offense, will constitute an implied agreement, in the absence of an express one, for his exemption from further prosecution. But where the testifying was not with the concurrence of the State’s attorney, and there was no such understanding with any authorized person, or evidence even of expectation, it was held not to be adequate. The agreement is that the accomplice shall disclose all he knows, honestly and fairly, and, if his testimony is corrupt, or if otherwise his disclosures are only partial, he gains nothing, and his • confessions may be used against him. But when he has fulfilled the agreement on his part, he is equitably entitled to be no further pursued for his own crime, and equally whether the part)7 testified against is convicted or acquitted. He cannot plead this acquired right in bar; and, if the attorney for the State refuses to recognize it, the court will simply continue the cause to permit him to apply to the executive for pardon.” (1 Bish. Cr. Proc., § 1164.) In the opinion of the writer the rule above quoted is the true one, and peculiarly so in this State in view of the fact that our Code defines and limits the pleas which may be made by a defendant in a criminal action.

But, even if the Bowden, Hardin and Harris decisions are correct, they are not applicable to, and authoritative in this case. In this case the agreement on the part of the defendant was not to testify in behalf of the State, but it was to perform certain services as a detective or informer; to discover and assist the officers- of the law in arresting, etc., certain thieves and violators of the law. We know of no rule of law, and of no decision of any court, and have been cited to none, which would authorize a court in entertaining a plea setting up such an agreement. It would be a dangerous practice to engraft upon the criminal law of this or any other State. This court will not attempt to make such an innovation. If the good faith of the State has been plighted, and the services of a party obtained thereby, it is the province of the executive of the State, in the exercise of its pardoning power, to make good the compact on the part of the State. It is a matter with \vhich the courts have nothing to do.

II. It was not error to permit the State to prove that another horse than the one which defendant is charged with stealing was stolen at the same time and place, and was found in the possession of another person at the same time and place that defendant was found in possession of the one he is accused of stealing. It was proved that this other person and the defendant were together in the neighborhood at the time the horses were stolen; had been companions for some time prior thereto, and left the neighborhood together on the night of the theft, and were found together, a hundred miles distant, in the possession of the two stolen horses, and a short time after the theft. The court properly instructed the jury that they could consider this testimony for the purpose of identifying the theft of which defendant was on trial, or for the purpose of showing the intent of defendant in taking the horse found in his possession, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he was on trial. (Kelley v. The State, 18 Texas Ct. App., 262.)

[Opinion delivered March 10, 1886.]

We have carefully considered the charge of the court in the light of the objections made to it by counsel for defendant, and, in our opinion, there is no error in it. It presents the law correctly and plainly upon all the issues raised by the evidence, and, such being the case, it was not error to refuse the special instructions requested by the defendant.

The judgment is affirmed.

Affirmed.