Bradford v. State ( 1933 )

Cattle theft is the offense; punishment, 2 years in the penitentiary.

It seems from the testimony of the state that one G. A. Guess had lost a head of cattle on or about the 8th day of January, 1932. On the trial of the case the state offered in evidence a written confession of the appellant to the effect that on January 8, 1932, he, together with one E. E. Barnes, had gone to the said Guess' pasture in a car. They left the car by the road and walked over to a straw stack in the pasture where there were several head of cattle bedded down around the stack and the said E. E. Barnes shot one of them and both of them skinned it and left the horns and skin there and carried the meat back to the car in the road and then took it to Ranger. The confession was to the further effect that the appellant ate some of the meat at Barnes' house and the said Barnes peddled the balance around Ranger. The state also offered in evidence circumstances showing that the appellant was one of the persons who had taken said head of cattle.

The appellant pleaded not guilty and filed a plea for a suspended sentence. He also offered evidence as to his good character in the community in which he lived, and also evidence that he had never before been convicted in this state or any other state of a felony. He also offered evidence tending to show that the confession was not freely and voluntarily made. The question as to whether said confession was freely and voluntarily made was submitted to the jury in the court's charge.

By bill of exception No. 11 it is shown that the state in rebuttal offered in evidence, over the appellant's objection, the testimony of C. O. Hamlin, Presiding Judge in the trial of said case, who testified that he was judge of the 90th Judicial District of Stephens County and as such judge presided in the trial of the case of the State of Texas v. E. E. Barnes; that the appellant herein, Elbert Bradford, was called as a witness for the state in the trial of the case and the said Elbert Bradford refused to testify in the said E. E. Barnes case. The appellant moved the court to strike the testimony elicited in reference to the failure of the appellant to testify in the said Barnes case upon the ground that the testimony of the witness brought before the jury the fact that in the E. E. Barnes case the appellant herein refused to testify. The court overruled appellant's motion to strike the testimony from the record, to which the appellant excepted and reserved his bill of exception.

Appellant filed no plea claiming immunity and raised no issue as to his having been granted immunity if he made a confession. The question of immunity was not an issue in the case, the only issue being as to whether or not the confession was admissible under the law governing confessions. As said in the case of Lopez v. State, 12 Texas App., 27, the fact that appellant might have agreed to turn state's evidence and testified to the facts confessed against another person would not operate to destroy the legality and admissibility of such a confession should he afterwards repudiate the agreement, but such agreement would only be subordinate to the confession. We think error was committed in the admission of said testimony. The state could not have availed itself of appellant's failure to testify against the person charged with the same offense as an evidence of his guilt of the offense charged against him or as destructive of his defense that the confession offered in evidence was not freely or voluntarily made. The appellant had the legal right not to testify as a witness in the case against the said E. E. Barnes and said fact was not admissible to go before the jury in determining the guilt of appellant and his failure to testify could not be considered as an inculpatory fact against him. In the case of Eads v. State, 66 Tex. Crim. 548,147 S.W. 592, it was held improper to refer to the fact that the accused failed to testify in an examining trial. In Swilley v. State, 73 Tex.Crim. Rep., 166 S.W. 733, it was held improper to ask the accused whether he had testified at a hearing on habeas corpus at a former time. It was held in Brown v. State, 57 Tex.Crim. Rep.,122 S.W. 565, that it was reversible error for the prosecuting attorney to ask the accused whether he had testified on a former trial even though the court on request withdrew the matter from the consideration of the jury. In the case of Hardin v. State,55 Tex. Crim. 631, it was held that after appellant's brother had testified in the case that appellant and not he stabbed deceased, the state on cross-examination asked said witness whether he, Richard Hardin, had ever testified in his own case where he was charged with killing one Munro, which the record shows had been tried three separate times, to which question the defense objected on the ground that even if Richard Hardin never testified in his own case it was immaterial, irrelevant, incompetent, and prejudicial to the defendant, Walter Hardin; that Richard Hardin had the legal right not to testify in his own case and such fact could not be considered by the jury nor alluded to by the jury in determining the guilt of the said Richard Hardin, and the failure to do so should not be considered as an inculpatory fact against him, and it was held that said testimony was clearly inadmissible for any purpose.

It is also shown by another bill of exception that the district attorney used said testimony about the failure of the appellant to testify as a witness against E. E. Barnes as a reason why said appellant should not have the benefit of a suspended sentence, and in his argument to the jury used the following language: "If I ever at any time thought this man was worthy of a suspended sentence, that thought would have been removed when he violated his agreement and got on the witness stand and refused to testify." The bill shows that said argument referred to the refusal of the appellant to testify as a witness against E. E. Barnes in reference to the theft of the head of cattle. We think this argument was improper, and that taken together the two bills of exception herein discussed manifest reversible error.

Reversed and remanded.

Reversed and remanded.

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 STATE'S MOTION FOR REHEARING.