Bybee v. State , 36 Tex. 366 ( 1872 )

Walker, J.

On page 6 of the record in this case, is found the following : “ This cause having heretofore been called for “ trial, being still under consideration, and having been sus- “ pended on account of the indisposition of jurors, and now “ again resumed, comes now the defendants and move the court “ to dismiss this cause as to the defendant William Bybee, for “ causes to the court set out. Thereupon, under instructions “ from the court to inquire into the premises and evidence in “ this behalf, as to the discharge of said defendant, the jury “ retired to consider thereof, and returned into court, as the “ result of their consideration, that they did not discharge said “ defendant Bybee.” This is a very anomalous proceeding.

A motion is made to the court to discharge one of the defendants, “ for causes to the court set out; ” and, thereupon, it would appear from the record, that, under instructions from the court, the jury take the matter under advisement, and return into court, as the result of their consideration, that they do not discharge the defendant Bybee.

The record contains nothing of the grounds of the motion, nor does it contain the instructions of the court, and' our minds are left to conjecture how this part of the trial was conducted.

It appears that the defendants were indicted for the murder of Thomas Gardner.

The principal evidence for the State consisted in the confessions of Cox, which, under the circumstances, probably could not have been used against Bybee. On the trial the defendants demanded a severance; whereupon the court permitted the District Attorney to elect which of the two should be first tried, the defendant Cox claiming that his co-defendant, Bybee, should be first tried, with a view to using his evidence on his own trial, in the event of an acquittal.

We think the ruling of the court was correct, on the ground that the State should not be compelled separately to try a defendant whose acquittal may depend upon technical grounds, merely for the reason, that, when acquitted, he may be used as a witness to break down another case; especially when the party to be tried is charged by him who would use his evidence with being alike guilty of the crime for which they are both indicted.

The ruling of the court could not injiuiously affect Bybee, for, if there were no evidence against him other than Oox’s confession, he could not be legally convicted, whether tried first or last, upon it alone; and the court probably judged wisely in determining that the question of Bybee’s guilt or innocence not being affected by the event of Cox’s trial, that he who had confessed his own guilt, and at the same time inculpated another, should be first tried.

But we think the judgment in this case must be reversed. In the case of Jones v. The State, 13 Texas, 168, the court lay down this principle: “Where two or more persons are jointly “ indicted, and put upon their trial together, and there is little “ or no evidence offered against one or more of the defendants, “ and such one or more of the defendants may be willing to be “ tried on the evidence of the prosecution, the .jury should be “ instructed to pass on their case before the other defendant or “ defendants have opened their defense, so they shall not be “ deprived of the evidence of co-defendants who are not ineul- “ pated hy the State’s evidence.”

It may have been intended, in a measure, to follow this rule on the trial of the case at bar; but the record does not show that the rule was followed in strictness, and, if it were, the evidence against Bybee is not sufficient to support a verdict for murder.

After the defendants had withdrawn their motion for a severance, and elected to be jointly tried, they could at any time after the State had closed its evidence, if there was little or no evidence against one or the other of them, have demanded that the jury should decide upon the case of such one of them; and in all such cases the jury should be charged by the court, and they should consider of their verdict, in the same manner as if the case had no connection whatever with any other, and their verdict should be guilty or not guilty, as the case may be.

This record does not show that the jury, in their separate deliberation on Bybee’s case, were properly instructed by the court; and if they intended at that stage of the case to pass upon the question of Bybee’s guilt or innocence, and their verdict is to be understood as a verdict of guilty, they should have said so, and the trial might then have proceeded against Cox alone.

For these reasons the judgment of the District Court is reversed, and the cause remanded.

Reversed and remanded.