Phillips v. State , 35 Tex. Crim. 480 ( 1896 )

Appellant was convicted of robbing a train. The robbery was perpetrated by three persons, and appellant (John Phillips), John Ward and George Sullivan were charged with the robbery. John Ward was indicted and tried, and convicted. The record is silent as to Sullivan. Ward was indicted in a separate bill from Phillips. Ward's case stood on the docket for trial before the case against appellant. The motion to quash the indictment was not well taken. See, Sargent v. State, ante p. 325. Mrs. Phillips was a witness for Ward and her husband, John Phillips. She was in attendance upon the court and testified in the Ward case. On the next day she was taken sick with measles, and at the time was in an advanced state of pregnancy. At the request of the proprietor of the hotel at which she was stopping, she was taken to her father's, about twelve miles distant; and she there grew worse with measles, and eight or ten days afterwards gave birth to a child. She had not been subpœnaed, either by the State or the appellant, but was present as a witness, as above stated. When this case was called, appellant moved for a continuance on account of the absence of the testimony of Mrs. Phillips, setting out all the facts in regard to her sickness. Three affidavits were presented to the court in behalf of the State, the object of which was to show that Mrs. Phillips was able to attend and be present as a witness on the trial. These affidavits are not at all in conflict with those which show that she was sick. In fact, this question, whether she was sick or not, is placed beyond any sort of doubt. Now, the court seems to have held that, because she had not been subpœnaed, the appellant was not entitled to a continuance. We cannot agree to such a rigid rule. We are not to be understood as holding that the accused should not procure process, and have the same served, for his witnesses, and especially his wife. But under the peculiar circumstances of this case, there being no evidence tending to show that the witness was acting in bad faith, or had left at the instigation of her husband, we think the rule too rigid, when applied to the facts in this case. Concede, however, that the court acted properly in overruling the motion because the witness was not subpœnaed; afterwards a subpœna was served upon the witness in ample time for her to attend court, but, she being very sick, it was impossible for her to do so with safety to her life. It may be insisted that, as the court eliminated a part of the testimony of Hardin — that which relates to what the wife said and did — while appellant was in jail, therefore there was no injury in refusing the continuance for the testimony of the wife. This may be true, but the application sets up, of course, what appellant expects to prove by his wife; and in the application we find that he expects to prove very important matters, separate and distinct from the conversation, if any, with Hardin. We are of opinion that the court should have granted the continuance. The State, over the objection of the appellant, proved by Hardin what occurred and was said to him by the appellant while in jail — in fact, proved a detailed confession of the robbery. Appellant had not been cautioned. In the explanation to the bill of exception objecting to this testimony, the court says that appellant had been a witness in the case, and testified in his own behalf, and had testified on cross-examination about the matters inquired about, as shown by the statement of facts. The testimony of Hardin was admitted upon the ground that the appellant has testified in his own behalf, and that his attention had been called to the facts sworn to by Hardin while on the stand. Now, it is well settled by the decisions of this court that, for the purpose of impeaching the testimony of a defendant, the confession and statement made while under arrest or in jail, though he may not have been cautioned, can be resorted to. See Quintana v. State, 20 Tex.Crim. App., 401. It is evident from this record that the confession was not admitted because, in pursuance thereof, fruits of the crime had been discovered, but solely upon the ground that he had testified in the case, as shown by the explanation of the judge. There was no error in admitting in evidence the testimony of Hardin, but the error consists in refusing to instruct the jury for what purpose the said evidence was introduced, viz: to impeach the testimony of the defendant, and not as original testimony for the purpose of proving the guilt of the accused. It is well settled in this State that, where such testimony is introduced, it is the imperative duty of the court to instruct the jury as to the use they should make of it, and to strictly limit it to that use. See Paris v. State, ante p. 82, and authorities there cited. Counsel for appellant requested the court to give such a charge, which was refused. After the testimony for the appellant had closed, Hardin was introduced, and swore to the confession made by the appellant to him while in jail. Appellant moved to postpone the case to procure the testimony of John Hodges, who was in the jail at the same time Hardin says the confession was made, and the man that Hardin said heard the confession. It appears from the record that the appellant was not aware that Hardin would be used as a witness at all until his cross-examination, whereupon appellant proceeded at once to obtain process for Hodges, using every degree of diligence within the bounds of reason. In fact, when the last process was sent to Arlington, the sheriff left only two hours before Hodges reached that place. Here was a complete surprise upon the part of the appellant. Hardin's name was not on the back of the indictment, and no intimation was made, until his cross-examination, that he would be used as a witness. Under these circumstances he requested the court to postpone the trial until he could secure the attendance of Hodges. The court postponed the trial for a day or two, but finally continued the trial, and the case was closed without the testimony of Hodges. To this appellant reserved his bill of exception. Now, whether the court acted correctly in refusing to postpone the trial further, it is not necessary for us to decide. Hodges' testimony was of the highest importance to the defendant. The evidence of Hardin had been left before the jury by the court as original criminative testimony. If Hardin told the truth, a deliberate confession was proven, with the particulars thereof. Concede that the court did not err in refusing to postpone the trial further, yet upon motion for a new trial, when the affidavit of Hodges was procured, there could be no doubt of its being the duty of the court to grant a new trial. Hodges, in his affidavit, traverses every fact sworn to by Hardin, and swears that bad blood existed between appellant and Hardin; that Hardin cursed and threatened him, saying that he would swear him into the penitentiary — and also shows that appellant called upon him to witness the fact that appellant would not converse with Hardin, and that the prisoners regarded said Hardin as a detective. Appellant complains of the action of the court in instructing the jury, or rather in answering a question of law propounded by the jury to the court, because neither appellant nor his counsel were present. This matter will not likely arise upon another trial. The question propounded by the jury was whether they should say in their verdict, whether the conviction was had upon circumstantial or positive evidence. For the errors above discussed the judgment is reversed, and the cause remanded.

Reversed and Remanded.

DAVIDSON, Judge, absent.