Rueda v. State

Appellant again urges error in the action of the trial court in not putting his case to trial before that of his codefendant, Carrasco. It appears that he and Carrasco had entered into a written agreement by the terms of which appellant was to be first tried. The matter seems to have been presented to the court below somewhat in the nature of a request for severance. Information had been given the trial court of the agreement but also of the further fact that appellant had said that he did not care to be tried first. As we gather from the record, when the application was presented, the court asked appellant in person if he desired that his case be tried first, and appellant expressed indifference regarding the matter, but upon further inquiry told the court to try Carrasco first. Our statute upon severance seems to require that an affidavit or affidavits be presented asking that some one or more of the parties jointly indicted be tried first in order that it may be determined that such person or persons are not guilty so that their evidence may be used by those who seek to be put upon trial at a later time. As we understand the case before us, the request had no such foundation, and was not preferred by Carrasco, and the complaint is not there made in Carrasco's case. It was urged in the oral presentation of this case that the attorneys for appellant believed that Carrasco, the leading spirit in the transaction which formed the basis for this prosecution, would be convicted capitally and that such fact would in some way affect the trial of appellant, should he be tried after Carrasco. The contention is novel but has had our serious consideration and we are not impressed with the view that same is sound, or that the trial court in anywise exceeded his discretion in the matter. Arguments that the action of the court showed want of consideration for counsel might be persuasive but not sufficient to justify a reversal of the case.

It is earnestly insisted that we failed to get appellant's view-point in regard to his bill 13-17 complaining of the trial court's refusal to withdraw the jury while testimony was being heard on the issue as to the voluntary character of an alleged confession. Appellant says that at once upon the offer of said confession by the State, he asked that the jury be retired while he presented to the court certain matters intended as an attack upon the voluntary character of the confession. While primarily the trial court decides the competency of a confession, still if its voluntary character be attacked and brought in question in the evidence, it then becomes a jury question under our practice, and the evidence supporting the contention that it is involuntary, as well as that on the other side, should be received in the jury's presence. We fear that able counsel for appellant are mistaken in their application of Bingham v. State, 262 S.W. Rep. 747, or may have been misled by the syllabus in that case. Said authority, in so far as applicable here, deals only with the question of whether the accused was under arrest or not at the time he made a statement, otherwise admissible. We held under the facts of that case that it was error for the trial court not to withdraw the jury and allow the accused to show by proof that in fact he was under arrest at said time. The rule in reference to cases where the issue is as to the voluntary nature of the confession, is stated in the opinion in that case and a distinction made between it and the rule applicable when the issue is the arrest of the maker of the statement. Judge Hawkins says in the opinion in that case, in discussing the practice when the contention is that the confession is not voluntary:

"If an issue of fact be raised, then to let all the evidence upon the issue go to the jury in order that they may be able to pass upon that question as well as to determine the weight to be given the admission or confession."

We have carefully examined bill of exceptions No. 18, and as far as we understand it we note that appellant drew out of witness Alderete the fact that appellant told said witness that he had been convicted for a felony in the Federal court. The matter being thus elicited by the appellant, he is in no position to complain of the fact that in the State's cross-examination questions were asked relative to the conviction of appellant for a felony. The court's qualification on this bill was accepted without question, and cannot be here attacked for the first time. What we have just said applies to the qualification appended to bill No. 19, which complains that the State's attorney in his argument said: "What does the defendant say about this?", it being here insisted that this referred to appellant's failure to testify. Accepting as true the court's explanation to said bill, to which no exception was addressed, it therefrom appears that said attorney had been commenting to the jury upon the statement of appellant's codefendant, Carrasco, which was in evidence, and that he then used the words above quoted and now complained of, but that after asking the question as to what appellant says about this, said attorney then took in his hand the confession of appellant and said to the jury: "I will read you what he says about it." This manifests no error.

We have given to each contention in this motion, close scruntiny and careful consideration in view of the extreme penalty of the law inflicted upon appellant, but find ourselves unable to agree with same. We feel it but fair to commend the forcible presentation as well as the careful preparation of this case before this court, which evidences that the trial court was justified in his selection and appointment of counsel to defend a man upon a serious charge such as this.

The motion for rehearing will be overruled.

Overruled.