Root v. State , 169 Tex. Crim. 382 ( 1960 )

DAVIDSON, Judge

(concurring)

Art. 644, C.C.P., says, in effect, that witnesses who are placed under the rule are to be “removed out of the court room to some place where they cannot hear the testimony as delivered by any other witness in the cause.”

To fortify that provision the legislature provided in Art. 646, C.C.P., as follows:

“. . . .but in no case where the witnesses are under rule shall they be allowed to hear any testimony in the case.”

In connection therewith, Art. 647, C.C.P., provides that witnesses under the rule shall be instructed “not to converse with each other or with any other person about the case, except by permission of the court * * * .”

In the instant case the rule touching communications with witnesses under the rule was violated, because it was admitted that the prosecuting attorney talked with the witness Hattie Rice, who had been placed under the rule, and in that conversation he had told her “about what Mrs. Baker testified too”, that this conversation took place in the “Judge’s office” in the presence of an officer whose name was not stated; and that the morning after the above incident the prosecuting attorney again talked with the witness about her testimony. What was said in that latter conversation was not stated. It was not shown that it took place in the presence of an officer or by permission of the court.

In reply to appellant’s objection to the testimony of the witness Rice because the rule had been violated, the prosecuting attorney made it clear to the court that it was his position that he not only had the right but it was his duty to discuss with witnesses their testimony before putting them on the witness stand, and in connection with that contention counsel stated as follows:

“We don’t deny talking with the witness and all the rest of the witnesses that we will have up here. We will discuss with them their testimony and phases of the case before we put them on, and we have a legitimate right to * * *

There is no escape from the conclusion that it was the viewpoint of state’s counsel that the rule against witnesses discussing their testimony while under the rule did not apply to state’s counsel when discussing with witnesses their testimony, including advising and telling them what other witnesses had testified from the witness stand out of their presence and hearing.

To the correctness of that assertion I do not and can not agree, because to so hold would not only destroy the rule but also the reason for the rule which prevents witnesses from knowing what other witnesses had testified in the case. The rule no longer exists if counsel for the state—or the accused, for that matter—can tell and advise a witness who had been placed under the rule what another witness had testified in the case. If counsel can tell the witness what other witnesses have testified, such witness might just as well sit in the courtroom and hear the testimony first hand.,

1 agree with counsel for the state that he has the right and that it is his duty to discuss with witnesses their testimony before putting them on the witness stand. I call attention, however, to the fact that if such discussion with the witnesses is to be had after they have been placed under the rule Art. 647, C.C.P., furnishes the procedure to be followed—that is, to first obtain “the permission of the court” to do so. Unless such permission is obtained, it is apparent that not only the spirit but the letter of the law having for its purpose the keeping of witnesses from knowing what other witnesses have testified has been violated.

The reason for recording my views upon this question is that if I did not do so I would be cast in the position of agreeing that state’s counsel is exempt from obedience to and compliance with the law governing communications to or with witnesses under the rule.

I agree that the rule has been here violated. I am unable, however, to agree that the testimony of the witness Rice was of such nature and consequence as to require a reversal of the conviction.

For that reason I agree to the affirmance of the conviction.