Bills v. State

305 S.W.2d 614, 166 Tex. Crim. 28, 1957 Tex. Crim. App. LEXIS 2419

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 1957
• Docket: No. 29,085
• Status: Published

Opinions

WOODLEY, Judge.

The offense is kidnapping for extortion; the punishment, 13 years.

Appellant and others were separately indicted for kidnapping Pete Rydolph.

The facts are substantially those set out in the opinions of this court affirming the convictions in two companion cases; Tyler v. State, 163 Texas Cr. Rep. 46, 288 S.W. 2d 517, and Miller v. State, 163 Texas Cr. Rep. 381, 292 S.W. 2d 108; the appellant having testified as a witness for the defendant Miller. She testified upon her trial and her testimony in the Miller case was offered by the state.

Appellant’s Bill of Exception No. 1 relates to the dismissal of a prior indictment and the return of the present one subsequent to the Miller trial.

When Miller’s case was called he filed affidavit for severance under Art. 651 V.A.C.C.P., requesting that Freda Bills be first tried, whereupon the state, desiring to try Miller, filed a motion to dismiss the charge by separate indictment against Freda Bills, the appellant herein. The court entered order dismissing said cause against Freda Bills on October 26, 1955.

Miller then proceeded to trial and Freda Bills, not being under any charge or indictment, testified in Miller’s behalf.

Thereafter, on December 1, 1955, the indictment upon which Freda Bills was tried and found guilty was returned, charging the same offense which was alleged in the prior indictment.

Appellant argues that the dismissal of the prior indictment was a subterfuge by the state to circumvent the severance statute; and that in law the dismissal of the prior indictment is conclusive and she could not be further prosecuted.

Appellant points to the fact that the question here presented has not been previously raised in behalf of the person whose case having been dismissed, testifies for a co-defendant and is subsequently indicted and convicted.

The purpose of Art. 651 V.A.C.C.P., one of the severance statutes, is to make the testimony of a co-defendant available to the defendant separately indicted for an offense growing out of the same transaction, who alleges under oath that such evidence is material for his defense and that he believes that there is not sufficient evidence against said co-defendant to secure his conviction.

When the testimony of the co-defendant is made available by the dismissal of all charges pending against him, and he is thus in position to testify the same as though no charges had ever been filed against him, the statute is satisfied.

Appellant filed no motion for severance, but complains that she was denied the rights to which she was entitled under the dismissal because it was done for the purpose of placing Miller on trial first.

The right to have a charge dismissed as to one jointly charged with an offense, so as to enable another defendant to have the testimony of such party, is for the benefit of the party on trial and not the witness he seeks to have made available. Munoz v. State, 77 Texas Cr. R. 545, 179 S.W. 566.

Appellant was in no worse position when she testified at Miller’s trial than she would have been had no indictment been returned against her.

Neither the defendant filing the motion for severance nor his co-defendant, whose testimony is sought, is entitled to have the co-defendant witness immune from further prosecution for the offense. Saucier v. State, 156 Texas Cr. R. 301, 235 S.W. 2d 903.

The views of Judge Henderson in Brown v. State, 42 Texas Cr. R. 176, 58 S.W. 131, cited by appellant, were not followed by the court in that case nor in other cases, including Saucier v. State, supra.

The remaining ground for reversal relates to the reproduction of appellant’s testimony given on Miller’s trial.

The state first offered portions only of her testimony on the Miller trial. The trial judge concluded that the excerpts offered did not properly portray her testimony, whereupon the portions read were wtihdrawn and her entire testimony given at the Miller trial was read.

Appellant thereafter testified fully on the same matters and was subjected to a thorough cross-examination as to her testimony at the Miller trial.

Under the facts stated, we find no error in the reproduction of appellant’s testimony given on the Miller trial.

The evidence sustains the conviction and we find no reversible error.

The judgment is affirmed.