Leahy v. State

The offense is murder; the penalty, death.

The deceased, Dr. J. A. Ramsey, was a practicing physician in the town of Mathis. On the late afternoon of May 20, 1926, one Roberto Martinez appeared at the residence of deceased and represented to him that his sister-in-law was sick with appendicitis and requested him to go with him to see her. The two departed together in compliance with such request shortly before nine o'clock, the deceased going in his Dodge car. This was the last time Dr. Ramsey was seen alive. A day or two later his wife received a post card in his handwriting informing her that he had to go to Beeville with a patient and that he might have to go on to San Antonio. As time went by without his return his family and the community became alarmed and suspicion fastened itself upon appellant.

The deceased, Ramsey, had purchased about a thousand acres of land formerly owned by the Leahy family from a mortgage company which had theretofore foreclosed on same. This was followed by ill will upon the part of appellant toward deceased, which found expression in many statements testified to by witnesses, showing his hostility toward deceased prior to his disappearance. A substantial reward was offered by the wife of Dr. Ramsey for his return and appellant had a contract drawn and presented to Mrs. Ramsey agreeing to return the body of Dr. Ramsey, dead or alive, within eighteen months for a consideration of $10,000. Upon this contract being changed by her, limiting the time to ten days and to the payment of the money only if Dr. Ramsey were produced alive, appellant rejected the contract. Immediately preceding this he had delivered to his supposed friend and co-worker after the reward, a Mr. Dubose, a ticket for Dr. Ramsey's car, showing the same was stored in the A B C Garage at San Antonio. The car was recovered. Considerable maneuvering occurred between Leahy and Dubose, as testified to by the latter, not necessary to be detailed but wholly inconsistent with the innocence of appellant. About August, 1926, the Mexican, Roberto Martinez, was arrested by officers just after he had swum the Rio Grande river from Old Mexico. A few hours thereafter he confessed to his complicity with appellant in the murder of Dr. Ramsey. He led the officers the next morning to a secluded spot in the brush about six miles from Mathis where from a shallow grave there was exhumed the body of deceased. Martinez testified on the trial that about five days before the murder of Dr. Ramsey he was employed as a chauffer by appellant in the town of Laredo, Texas; that he had never seen appellant but one time prior to this; that he went with appellant to San Antonio from Laredo, and from there back to Mathis, where he stayed at a restaurant belonging to Euphemia Lemos, where he had left his pistol and pants; that on the evening of May 20, appellant asked him to lure Dr. Ramsey away with the tale that his sister-in-law was sick with appendicitis; that he did so in compliance with appellant's request; that he and appellant the day previous had dug a hole shaped like a cistern at the spot where Dr. Ramsey's body was exhumed, using a peculiar shaped hoe in the operation; that Dr. Ramsey was marched by appellant to this hole on the night of May 20, was struck with a blunt instrument, gasoline poured down his throat and after being placed in the hole, his throat was slit with a dirk knife. The hole was covered up, a rat's nest placed on it to hide its identity, and on the same night he, Martinez, went to San Antonio and placed Dr. Ramsey's car in the A B C Garage, taking the ticket with him to Laredo to the home of one Maria Cortez. To this place appellant came not long after the murder of Dr. Ramsey and Martinez being sick in bed, Maria Cortez delivered to him the ticket to Dr. Ramsey's car. It was shown by a Mexican woman that she washed some bloody clothes corresponding in size to those worn by appellant the next day after the killing at the Leahy home. Blood was found on the clothing of deceased. It is not disputed that Martinez and appellant were together around Mathis shortly prior to the homicide. A blacksmith testified that shortly prior to Dr. Ramsey's disappearance he changed a hoe into one of a peculiar shape. This was shown to correspond in appearance to the one Martinez described as being used to round out the peculiar shaped hole in which Dr. Ramsey was found buried. The blacksmith further testified that appellant told him he was having the hoe made for his mother, but she testified she had never seen the hoe. The appellant denied any complicity in the killing of Dr. Ramsey and introduced witnesses to prove a complete alibi.

It is insisted that the evidence is insufficient to corroborate the testimony of the accomplice, Martinez, as to the actual presence of appellant at the scene of the homicide. It is not required that the corroboration should be conclusive or that it alone be sufficient to establish the guilt of accused. Grice v. State, 298 S.W. 597, and authorities there cited. Nourse v. State, 2 Tex.Crim. App. 317. Nor is it required that such corroborative testimony consist of direct evidence only. It has been said:

"There is no doubt but that the corroborative evidence may be circumstantial, provided it otherwise fills the measure of the law as laid down in Art. 801, supra, and the Court may with propriety so instruct the jury." Walker v. State, 94 Tex. Crim. 660.

Naturally the State was unable to produce a witness not connected with the crime who saw its horrible details and was forced to resort as is usually the case to proof of circumstances. It devolved upon the State to show that the death of deceased had occurred by criminal violence inflicted by someone. Lovelady v. State, 14 Tex.Crim. App. 545. Follis v. State, 51 Tex. Crim. 186. Hernandez v. State, 8 S.W.2d 949. The State proved this, we think, abundantly and conclusively.

The only issue remaining under the law was the direct criminal connection of appellant with such death. The accomplice testified that appellant had deceased sign several papers before he murdered him. It was the State's theory that one of these was the post card subsequently received by Mrs. Ramsey, wife of deceased, who testified that same was in his handwriting but that it was not his usual handwriting. The State's theory further was that one of the other papers was a deed to the above mentioned thousand acres of land. Evidence was introduced that appellant had written letters and had same copied and signed by others to Dr. Ramsey asking if he claimed or would claim this land as his homestead, to which Dr. Ramsey had more than once replied in the negative. This was introduced to show that appellant intended to procure a deed from Dr. Ramsey in the manner he did without the signature of his wife and that he expected to use these statements of Dr. Ramsey in writing that did not and would not claim same as a homestead to establish title without her signature. His action in trying to procure a contract to pay $10,000 for the dead body of deceased at a time when all good citizens should have gladly donated their services, his various maneuvers with witness Dubose, the blood on his clothes, the fact that he was in possession of the automobile of the deceased, his close association with the Mexican, Roberto Martinez, immediately preceding the homicide, his studious and persistent attempt to circulate false rumors to the effect that Dr. Ramsey had gone off with some girl, that he and his wife did not get along, and that she was unduly intimate with another, naming him, all these, with other circumstances, point an accusing finger at appellant and were sufficient, we think, to meet the demands of the law as to the corroboration of Martinez.

In passing upon the sufficiency of the corroborative testimony we have stated the testimony only which most strongly showed appellant's guilt. There are certain aspects of the Martinez testimony not related here which might have been regarded by the jury as discrediting this witness but the law has vested the jury with the sole right to pass on the credibility of the witness with which function this Court has neither the legal right nor the inclination to interfere. The jury having foreclosed this issue against appellant, we state none of such testimony, as we are powerless under the law to interfere if we desired.

The transcript contains over four hundred pages. A great multitude of law questions have been presented by appellant. Many of them were undoubtedly preserved out of an abundance of precaution and are so obviously without merit that we do not feel it necessary to refer to or discuss them.

The Court submitted the question of whether or not the witness E. M. Dubose was an accomplice and gave a charge on accomplice testimony. A sufficient answer to all the objections urged by the appellant to this charge is that the record, in our opinion, fails to raise such an issue and the instruction of the Court was therefore favorable to appellant. We find no evidence in the record that Dubose was in any way connected with the instigation of the crime or its perpetration. His only connection was as a detective in trying to get evidence against appellant. Under these circumstances such a charge is not demanded. Wright v. State, 7 Tex.Crim. App. 574; Savage v. State, 170 S.W. 730. Nor do we believe that there was any testimony raising the issue that either Maria Cortez or Euphemia Lemos were accomplices and the court correctly refused to submit such an issue. As to witness Roberto Martinez, the court charged the jury as follows:

"And, in this connection you are instructed, as a matter of law, that the witness, Roberto Martinez, is an accomplice, and you cannot convict the defendant upon the testimony of the said Roberto Martinez alone unless you first believe that his testimony is true, and shows, beyond a reasonable doubt, that the defendant is guilty of the offense charged; and even then you cannot convict the defendant upon his testimony unless you further believe that there is other evidence in the case, outside of, other than, and independent of the testimony of said accomplice, and corroborative thereof, tending in some material matter, to connect the defendant with the offense committed, if any; and in this connection you are further instructed that the corroboration, if any, is not sufficient if it merely shows the commission of an offense, but it must go further, and in some material matter, tend to connect the defendant with its commission, and even then you cannot convict the defendant, in any event, unless you are satisfied from all evidence in the case beyond a reasonable doubt that he is guilty."

This charge is in practically the identical language of Oates v. State, 149 S.W. 1194, which has been many times approved. The only criticism of this charge which the Courts have made so far as we are aware is in the use of the word "alone." This should have been omitted. However, the testimony of the accomplice shows a complete offense by appellant without the aid of any other evidence and if believed would leave no reasonable doubt of guilt and the corroboration, in our opinion, being sufficient, this Court will not reverse because of the use of this word. Abbot v. State, 94 Tex.Crim. Rep.. See also Henderson v. State, 97 Tex.Crim. Rep.. We think this charge substantially complies with the requirements of such a charge laid down in Standfield v. State, 84 Tex. Crim. 437. See also Brown v. State, 57 Tex.Crim. Rep.. Stovall v. State, 104 Tex.Crim. Rep.. The question is exhaustively discussed in the authorities cited, and we do not feel able to add anything to what has already been said on the correctness and elements of a charge on the corroboration of an accomplice.

By bill of exception No. 52 it is made to appear that the District Attorney propounded to Sheriff Key the following question: "Has the defendant ever told you the whereabouts of Roberto Martinez outside of the time he was confined in jail, has he ever told you the whereabouts of Roberto Martinez?" To which he answered he had not. It is insisted this testimony was not material and was proof of statements made while appellant was in custody in violation of the statute. The record shows that many conversations were had with Leahy, the appellant, during the time of the investigation of the disappearance of Dr. Ramsey and it further shows that Martinez had theretofore been employed by appellant and that appellant actually knew of Martinez's whereabouts a part of the time at least after Dr. Ramsey's disappearance. The fact that he remained silent as to the whereabouts of the man with whom deceased was last seen and who was being vigorously sought was a circumstance, we think, of a criminative character provable against appellant. It is not shown that any such statement was ever asked about while appellant was in custody. We do not indulge presumptions against the correctness of the trial court's rulings. In the absence of some showing to the contrary, we will presume that any statements testified to were made at a time and place and under circumstances which render them admissible.

The effect of bill of exception No. 46 and some of the others is to question the right of the State to require appellant to state what he had told his lawyers. The substance of these bills shows that appellant was asked when was the first time he told who he got the car check from. None of these bills show that witness was required to disclose any confidential communication made to his attorneys, and all of them pertaining to this matter are overruled.

It is urged that the Court erred in permitting the State to ask witness Martinez if he had ever been offered any immunity, to which the witness replied: "There has not been anyone that has told me anything." This occurred on redirect examination after a vigorous cross-examination in which an effort was made to discredit the witness and to show that his confession was not voluntary and his testimony false. We think, under the circumstances, the statement was admissible.

Testimony was introduced as heretofore indicated that Martinez stayed at a restaurant operated by Euphemia Lemos and that he left his pants and pistol there. It is further shown that he went back to this place and got these articles and that he claimed them. His getting them and what he said about them to the officers in appellant's absence, it is claimed, was res inter alios acta and were hearsay statements in the absence of defendant. This is undoubtedly correct but their only effect was to prove and establish the presence of the witness Martinez if he had ever been offered any immunity, to which was an undisputed issue, same being testified to by appellant himself and we cannot perceive how any prejudice could arise from testimony upon an issue that was conclusively proven by witnesses and admitted as true by the appellant.

By bill No. 38 complaint is made of the admission of evidence of the testimony of Mrs. Ramsey to the effect that her relations with the Doctor were pleasant and congenial and that they did not live like cats and dogs and further by bill No. 39 as to whether or not Dr. Ramsey ever evidenced "dissatisfaction to you in any way in his married life," also objection was made to the answer of Mrs. Ramsey that Dr. Ramsey was not a man who would run away with a 14, 16, or 18 year old girl and that she knew him to be a clean, honorable gentleman. This testimony was admitted to show the falsity of appellant's statements made as to these matters after Dr. Ramsey's disappearance. If appellant were trying to throw the officers off the track or if he were making false statements showing ill will and malice toward Dr. Ramsey, assuredly same are provable against him. Probably part of the statement "that she knew him to be a clean, honorable gentleman" was inadmissible but it came in response to a material question and part of the answer to such material question was admissible and no motion was made to strike the inadmissible portion, even if it be conceded that it was prejudicial.

By special charge No. 3 the appellant sought to have the jury instructed in substance that it was no violation of the law for appellant to have attempted to collect or obtain any reward for the apprehension of the person responsible for the disappearance of Dr. Ramsey and that if the jury believed that after the said Dr. Ramsey disappeared the appellant conceived the idea of procuring a reward for producing either the person responsible for his disappearance or the body of said Dr. Ramsey, then the jury could not consider such acts, if any, as a corroboration of the testimony of the witness Martinez. This appears to us to be a matter for argument to the jury that had no place in the Court's instructions. It singled out and emphasized certain testimony, was an invasion of the duties placed by law with the jury and was upon the weight of the evidence. Dunn v. State, 263 S.W. 616; authorities collated in Vernon's C. C. P. (1925), Art. 658, Note 127. "A charge of the Court which is in effect a philosophic disquisition upon the force and nature of a particular species of evidence amounts to an invasion of the province of the jury and is error." Walker v. State, 13 Tex.Crim. App. 618. We think this charge requires no analysis to demonstrate that it was improper and that the Court correctly refused to give it.

The correctness of the Court's charge presenting the defense of alibi is vigorously assailed. The particular part under attack is in the following language:

"And in this connection you are further instructed that if you believe from the evidence that at the time the murder, if any, was committed, that the defendant, H. J. Leahy, was at his home or was at any other place than the place of the commission of the murder, if any, or if you have a reasonable doubt thereof, you will acquit the defendant."

A charge in the following language has been approved many times:

"If you should entertain a reasonable doubt as to the presence of the defendant at the time and place where the offense is alleged to have been committed, you will acquit the defendant." Jaggers v. State, 104 Tex.Crim. Rep., and authorities there cited.

The Court's charge was rather inaptly worded but it seems to us to be sufficient to protect the appellant. It has been said of an alibi charge that "a charge though in some particulars obnoxious to criticism but which taken together could not have misled the jury is not ground for reversing the judgment." Boothe v. State, 4 Tex.Crim. App. 214. While this charge submits to the jury the issue of a reasonable doubt as to the presence of the appellant at home rather than at the place of the offense, the distinction between the two is more apparent than real. This submitted appellant's defense practically as it came from the mouth of his witnesses. We think the language of the judge in the Jaggers case, supra, more appropriate, but we are not able to believe that the language of the Court quoted above could have misled the jury as there is not to our mind any real distinction between the charge which appellant claims should have been given and that which was actually given.

To establish his defensive alibi the appellant introduced one W. B. Boyd, who, among other things, testified that he saw appellant at his home in the town of Mathis about nine o'clock on the night of May 20, 1926, which was the night and about the hour of the night the murder of Dr. Ramsey is claimed to have occurred. He fixed the date particularly from a check he gave on an Alice bank to one Coffin for cattle which was dated May 20, 1926. This check was introduced in evidence. On the back of this check was the indorsement: "Pay to the order of any bank, banker or trust company. May 20," with the numerals "30-2," and the name of the bank not shown. After the introduction of this check the State introduced a witness to show that the characters "30-2" was the transit number of the Alamo National Bank of San Antonio, this in order to prove that such check must have been given before May 20, 1926, as it could not have been in the San Antonio bank on such date, especially since Boyd testified "I gave this check to A. B. Coffin about six o'clock in the afternoon of the 20th day of May, A.D. 1926, after the banks were closed. Te banking hours were over at the time I gave the check to Mr. Coffin." This check also bore the indorsement: "Pay to the order of any bank, banker or trust company. May 19, 1926. Previous indorsement guaranteed. First State Bank, Mathis, Texas." To show that the transit number appearing on this check was that of the San Antonio bank, W. L. Price, a banker of Williamson County, was placed upon the stand by the State and over objection testified that it bore the transit number of the Alamo National Bank of San Antonio. His testimony in substance shows that he had no personal knowledge whatever of the transit number of such bank but that he had gotten his information from a register published and gotten out by the Union National Bank of Houston and purchased by his bank, which was a book published for the benefit of bankers, purporting to show the transit number of all banks in Texas and which was the book recognized by the banks of Texas as correct; that the banks in Texas only used one transit number; that he did not personally know whether the register was correct or not. Many objections were made to this testimony, chief of which was that the contents of this register were hearsay and not shown to be authentic or correct.

The theory of the rule against the admission of hearsay statements rests primarily upon the reason that cross-examination of the witness making such statements is not possible to test their accuracy, motives behind them, and so forth; but if such statements appear to be free from such risks and to come from a source and under such circumstances as to constitute a guaranty against inaccuracies and untrustworthiness, they may constitute an exception to the hearsay rule. Illustrative of exceptions to the rule of the inadmissibility of hearsay statements is found in the admission of railway time tables, Western Union Telegraph Co. v. Gilliland, 130 S.W. 212; mortality tables, Railway Co. v. Davis, 262 S.W. 923; rules of master car builders' associations, Leas v. Continental Fruit Express, 99 S.W. 859. A constantly developing social and commercial life force an expansion of old rules to embrace its new phases, but there ought to be a real analogy between the new and the old before an addition is made to a list of exceptions to this ancient and wise rule which inhibits the admission of hearsay statements. The analogy between the cases cited above and the instant case does not seem to us to be clear enough to justify an expansion of the exceptions to include the evidence in question. Especially since this evidence related to a recent fact about which witnesses were easily available to testify personally.

It does not, however, follow that there was harmful error in its admission for the following reason: Appellant himself introduced the check above described to establish by its contents the date Boyd saw him in Mathis. This check contains two dates, namely, May 20, 1926, followed by the name of the indorsing bank not fully shown and May 19, 1926, followed by the indorsement of the Mathis State Bank, Texas. The witness Boyd testified this check was given after banking hours on May 20, 1926. The two last dates were bank indorsements purporting to show the date such check passed through such banks, and such indorsements considered with Boyd's testimony proved that the check in question was in the custody of some bank prior to the 20th of May, 1926. This was the only effect which could have been given to the facts stated in the objectionable register. The appellant himself having proven the very fact to which he objected is in no position to complain of such testimony as has been uniformly held in many cases by this Court. In other words, the appellant having already proven by the introduction of the above described check the same fact which the State proved by the testimony of witness, Price, with reference to the register, cannot here complain of proof of a fact already established by himself. For collated authorities, see Vernon's C. C. P. (1925), Art. 847, Note 32, Vol. 3, P. 271.

A number of bills of exception appear in the record to the refusal of the trial court to permit appellant personally to cross-examine witness at a hearing held on appellant's motion for new trial. It is claimed this action of the Court was violative of appellant's constitutional right of being "heard by himself or by counsel or by both," as expressed in Sec. 10, Art. 1, of our State Constitution. These bills are qualified to show that appellant was at that time represented by counsel and that he was instructed by the Court to have his counsel propound such questions as he desired, whereupon appellant refused to permit his counsel to cross-examine, and no cross-examination occurred of these witnesses on such hearing.

A district court has the undoubted right to hold all trials to their proper and legitimate channels. It is not only his legal right but his duty as well to see that the Court's business proceeds in an orderly and decorous manner. The conclusion logically follows from this premise that a defendant, under the guise of a constitutional right cannot propound impertinent or improper questions to a witness. These bills contain neither questions sought to be asked nor the answers expected. The appellate court presumes nothing against the correctness or fairness of the acts of the court below, or its officers, and objectors thereto must not only affirm but must show that such acts were not legal, and that they were such as to apparently work injury to them. Rodgers v. State,93 Tex. Crim. 1. The right to be heard means only a privilege granted and to be exercised within the law in a proper and legitimate manner. In its last analysis appellant's proposition amounts to a bill showing that all of appellant's offered evidence on cross-examination upon hearing of his motion for new trial was excluded. But it is and has always been the rule in Texas that a bill to the exclusion of evidence must disclose the relevancy and materiality of the proposed evidence. Inferences will not be indulged to supply the omission of such essentials. Branch's P. C., Sec. 212. See also Shelton v. State, 54 Tex.Crim. Rep.. We will not presume in support of the bills presenting this matter that an untrained and inexperienced questioner intended to ask relevant and proper questions upon material issues then before the Court. Appellant's position could well be applied to every case where the Court has refused to permit questions in the presence of the jury concerning alleged improper matters. Such a proceeding might be plausibly argued as a denial of the right to be heard, but the books are full of Texas authorities holding that such a complaint presents nothing for review, where neither the question asked nor answers expected are shown in the bill.

We dispose of this question without deciding that under the recited facts any constitutional right of the character mentioned existed, and mention this because such a conclusion might be implied from what has been said.

By bill of exception No. 1 it appears that prior to announcement of ready for trial motion was made to permit appellant's counsel to inspect two written statements or confessions made by the Mexican, Martinez, shortly after his arrest, to the District Attorney of Live Oak County, which permission the Court refused. No part of such statements appears to have been made an issue on the trial, and none of their contents were used against appellant. Nor does it appear that any limitation was placed by the Court on the examination of any witness with reference thereto. Under these circumstances no error appears. Pierce v. State,5 S.W.2d 516, and authorities there cited. The statements called for were not public documents but private papers. Goode v. State, 57 Tex.Crim. Rep.; Taylor v. State, 87 Tex. Crim. 338. Moreover, appellant's motion was premature. Under the facts of this record such a motion could not be sustained unless and until the statements were in some way made material by the developments of the trial.

The serious question in this case is presented by the bill of exception showing that all opportunity to interview the witness Martinez had been denied appellant and his counsel. Motion was made for such opportunity of interview before announcement of ready for trial. It was shown that the witness was in jail in the town where the trial was being had and the Sheriff declined to permit the appellant or his attorneys to talk to said witness unless required to do so by the Court; that a similar motion had been denied in Live Oak County and appellant and his attorneys had been denied all chance and opportunity of talking to said witness and had never talked to him. The motion was overruled. It seems to have been appellant's theory that Martinez was coerced into making a confession implicating appellant, and that said witness was entirely dominated by and under the influence of certain officers, fearing to testify other than he did, and that if given a fair chance, such facts might have been revealed as would enable appellant to prove this. It further appears by other bills that the Court over objection permitted some of these officers to remain in the court room while Martinez was testifying and refused to place him under the rule. It appears further from the bill that Martinez had testified on a former trial of this same case and had been cross-examined by appellant's counsel. This to show in opposition to the motion presented that appellant was fully aware of what Martinez would testify when his said motion was presented.

The question is presented by this bill as to whether the State can legally deny opportunity of interview to the accused or his counsel with a State's witness, or put in another way, whether the State can by the affirmative acts of its officers prevent all contact between a prospective witness for the State and accused or his counsel. This does not involve the question of the right of an accused to obtain an order from the Court to compel a witness to talk or submit to an interview who objects to same. That the Court has no authority to enter such an order is well settled. Lee v. State, 100 Tex.Crim. Rep.; Wilkerson v. State, 57 S.W. 956; Brewer v. State, 95 Tex. Crim. 521.

By the terms of our State Constitution the accused is guaranteed the right of compulsory process for his witnesses. He is entitled to know the names of the witnesses upon whose testimony the indictment was found. Art. 392, C. C. P. When a witness has been served with process by one party, it shall inure to the benefit of the opposite party in case he should need said witness. Art. 463, C. C. P. Copy of an indictment must be served on defendant in certain cases and delivered upon request in all cases. Arts. 488 and 489, C. C. P. No arraignment shall take place until the expiration of at least two entire days after the day a copy of indictment was served on defendant, etc. Art. 493, C. C. P. The Clerk is required under penalty to issue subpoenas when and only when written application is made under oath setting out the names of the witnesses, their residence, etc. Art. 103, P. C., and Art. 463, C. C. P. These various provisions evidence clearly an intention to have a prosecution conducted fairly and in the open, with every opportunity given the accused to prepare for his trial. The law does not give to the State a proprietary interest in a witness which entitles it to his exclusive possession, for by the terms of Art. 463, C. C. P., a witness under process is a witness for either or both sides. If an accused is to be denied all opportunity to talk to a witness, then the above compulsory process clause of the constitution becomes in most part an empty and high sounding phrase. If the State can incarcerate a witness and prevent any chance of interview and opportunity to know in advance what such a one's testimony will be, it is in effect a nullification of the salutary provisions of the clause of the constitution already referred to, as practically all of its benefits are thus destroyed. Such opportunity of interview would seem to be a necessary implication arising from the compulsory process clause above quoted. The right of reputable counsel to interview a witness has apparently been so rarely denied in American jurisprudence that we find very few cases on the subject. Addressing himself to this question, Presiding Judge Dubois of the Rhode Island Supreme Court uses the following vigorous language:

"The attorney for the defendant not only had the right, but it was his plain duty towards his client, to fully investigate the case and to interview and examine as many as possible of the eye-witnesses to the assault in question, together with any other persons who might be able to assist him in ascertaining the truth concerning the event in controversy. Witnesses are not parties and should not be partisans; they do not belong to either side of the controversy; they may be summoned by one or the other or both, but are not retained by either. It would be a most unfortunate condition of affairs if a party to a suit, civil or criminal, should be permitted to monopolize the sources of evidence applicable to the case to use or not as might be deemed most advantageous. * * * The defendant, therefore, has the constitutional right to have compulsory process for obtaining witnesses to testify in his behalf, he has also the right either personally or by attorney to ascertain what their testimony will be." State v. Papa,32 R.I. 459.

As illustrating the general attitude of the Courts of other States toward the right of consultation with witnesses, we quote from decisions as follows:

"It is fatal error to refuse the defendant the privilege of conferring with his own witnesses whether they were under the rule or not. This has been so held where his counsel were refused this right. White v. State, 52 Miss. 216. And very much more is this so in reference to the defendant himself. The denial was an invasion of his constitutional right. It is often of vital importance that both defendant and his counsel should together confer with his witnesses in the progress of the trial. The right cannot be restricted except that the trial court may impose reasonable limitations as to the length of the time of the conferences." Shaw v. State, 79 Miss. 21.

"Where a material witness, and particularly as in this case, an accomplice, is incarcerated in jail and to that extent under the control of the prosecution, and the defendant makes application for leave to interview or question such witness in reference to his testimony, under all the facts shown here, the Court should afford a reasonable opportunity for such purpose, and the denial of the request of the defendant was error." Exleton v. State, 235 P. 630.

"Whatever the popular notion may be, it is neither the duty nor the right of the state, acting through its public officers, to secure the conviction of one of its citizens by any available means, fair or foul. The Constitution guarantees to everyone accused of crime a fair and impartial trial (Art. 111, Sec. 16), and the state has no more right to deny defendant's counsel access to a witness material to the defense than it would have had to secrete the witness to prevent the defendant using him, or to deny the defendant the right to process to compel the attendance of a witness, and defendant could not be required to call Felt to the witness-stand without knowing in advance what his testimony would be." State v. Ganger, 73 Mont. 194.

The following language occurs in the case of Brown v. State, 3 Tex.Crim. App. 313:

"It is the duty of attorneys to prepare and acquaint themselves with their cases by talking to the witnesses before the announcement for trial; and, if attorneys are appointed by the court to defend, it is the duty of the court to furnish them full opportunity and facility to converse with the witnesses, and make their necessary preparation before they are forced into trial; and this is especially the duty of the court in cases involving the grave issues of the life or liberty of the citizen."

The right of an accused to have a fair opportunity to prove his innocence is but the expression of a fundamental truth that has been given life and vitality by many provisions of modern law, but which in reality is as ancient as the human desire for justice and fair dealing between men. It follows that we are of the opinion that appellant or his counsel were entitled to the opportunity of interviewing the Mexican, Martinez, under such reasonable restrictions and safeguards as the circumstances of the case made advisable. If the Mexican had refused to talk that fact was provable in behalf of defendant. Of course the Court had no power to make him talk, particularly in this case, as he himself was under indictment, and could stand on his constitutional rights, but this is not the question presented.

Believing that there was error committed, the only question that can remain for consideration is whether or not same was of that prejudicial character that demands a reversal.

We find in this record that no motion for postponement or continuance was made on account of any surprise at the testimony of Martinez at any stage of the trial nor was there any showing of injury in the motion for new trial in regard to this matter. If there was anything in Martinez's testimony that could have been rebutted on another trial, some showing of same should have been made in the record, either in motion for continuance or on motion for new trial. Bryant v. State,35 Tex. Crim. 398; Knight v. State, 64 Tex.Crim. Rep., and authorities there cited. It is shown that appellant had opportunity of cross-examination of witness Martinez at a former trial and if there was any improper restriction upon such cross-examination, it does not appear in the record. The entire record suggests that the appellant knew in advance everything that the witness, Martinez, would testify to at the trial, and that his testimony was in no particular a surprise to appellant. Nor does it anywhere appear that any additional facts in rebuttal of the Martinez testimony would be available to appellant upon any material matter if this case were reversed and remanded. The circumstances of this case were very unusual. The trial court perhaps had reasons which were to him amply sufficient for his action. The Court is of the opinion that the record as a whole shows an absence of injury to appellant arising from the matter complained of. This being the Court's view, and being of the opinion that no error prejudicial to the accused is shown in the record, the judgment of the trial court is affirmed.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.