MORROW, Judge.
Appellant was indicted and convicted of murder and his punishment assessed at death.
The evidence was wholly circumstantial. There were more than ninety witnesses. Before the trial began the court asked if either party desired the rule. Beeeiving no reply, he directed the witnesses to take their seats. About that time appellant’s counsel requested the court to put the witnesses under the rule, and this request being refused, appellant excepted.
“The expedient of separating a party’s witnesses, in order to detect falsehood by exposing inconsistencies, seems to have been early discovered and long practiced in various communities. Though probably
not in itself older or more widespread than some other fundamental notions of proof, nevertheless its age and universality have come to be more emphasized in our own legal annals because of the instance recorded and handed down in the apocryphal scriptures. The story of Daniel’s judgment in Susanna’s case has given to this expedient a unique and classical place in our law as well as in our literature.” 3 Wigmore on Ev., sec. 1837, p. 2381.
The story of Susanna is familiar. Her accusers testified in the presence of each other to her guilt. She was about to be condemned when Daniel interposed, saying: “Put these two aside, one far from another, and I will examine them.” His examination disclosed such discrepancies in their testimony as resulted in the release of Susanna and the condemnation of her accusers. Since then the importance of the separation of witnesses has been regarded as a valuable adjunct to the cross-examination of witnesses and a right accorded whenever demanded in the trial of causes. 3 Wigmore on Ev., sec. 1837, p. 2382; Sir Walter Baleigh’s Trial, Jardine Crim. Tr., I, 419; Sidney’s Trial, 9 How. St. Tr., 817, 861; Bosewell’s Trial, 10 id., 147, 190; Cook’s Trial, 13 id., 311, 348, note; Fenwick’s Trial, id., 537, 722; Braddon, Observations on the Earl of Essex’s Murder, 9 id., 1229, 1278, 1283, 1294; 2 Bishop’s Crim. Proe., sec. 1188.
With reference to the matter Mr. Wigmore in his work on evidence (vol. 3, see. 1839, p. 2388) uses the following language: “Ho rule, therefore, should ever be laid down which will by possibility deprive an opponent of the chance of exposing perjury. Finally, it can not be left with the judge to say whether the resort to this expedient is needed; not even the claimant himself can know that it will do him service; he can merely hope for its success. He must be allowed to have the benefit of the chance, if
he
thinks that there is such a chance. To require him to show some probable need to the judge, and to leave to the latter the estimation of the need, is to misunderstand the whole virtue of the expedient, and too deny it in perhaps that very situation of forlorn hope and desperate extreme when it is most valuable and most demandable.”
From Watts v. Holland, 56 Texas, 54, we take the following quotation :
“The existence of the rule, as applicable to all kinds of cases, is not, of course, to be confounded with the regulations concerning its application to a given case. The common law rule of evidence and procedure confides to the judge a discretionary authority as to when the rule may be invoked and enforced.
In our State no such discretion is extended to the judge in criminal cases;
the statute, art. 662, B. S., Code Proe., gives the
right
to either party to invoke the rule. Brown v. State, 3 Texas Crim. App., 294.
“Whilst it is laid down by text-writers, whose conclusions are well supported by authority, that the enforcement of the rule lies within the discretion of the court, high authority is not wanting to maintain
the rule as one which parties are entitled to
demand
the enforcement of. Alderson, B., in Southey v. Nash, 7 C. & P., 632 (1 Greenl., sec. 432, note 1), expressly recognized it as 'the
right
of either party, at any moment, to require that the unexamined witnesses shall leave the court.’ ”
From the opinion in the same case we quote the following:
“As thus laid down by both of these standard authorities (1 Greenl. on Ev., sec. 431, and Phillips on Ev., vol. 2, p. 395), what is called 'a
rule’
seems to be intended as such
in fact,
as well as in
name;
a. definite regulation prescribed by the law for the conduct of trials — ■ uniform and universal, — to which all parties litigant are entitled, subject to such judicious regulations confided to the judge’s discretion as-right and justice exact. It is a
rude
for the ascertainment of truth, and the doing of justice, wherever the purposes of both require it; and being a
rule
of law to regulate trials, every citizen, under the Constitution and laws of the country, is entitled to its benefits as a part of the law. To capriciously deny it to him to the deprivation of his property, would be to do so without sanction of law — 'the law of the land.’
“The refusal in a proper case, to administer to a party the benefits of a rule of law, on which the security in his rights of property depended, . . . would amount, in effect, to the substitution of an unregulated, and, as it might be, capricious and despotic,
discretion in name,
but mere personal
will
in fact, for the 'law of the land.’ ”
From the opinion of Judge Wheeler, in the case of Hipp v. Bissell, 3 Texas, 18, we quote the following:
“When there is no rule, or when the rule is inapplicable, or does not afford a perfect guide, then there is room for discretion, and from the necessity of the case it must exist. There may be cases to which no known rules or fixed principles can be applied; and the discretion which must be exercised can not be the subject of revision. But when there-are known rules of action prescribed, there can be nowhere a discretion to dispense with those rules.”
The text-writers and authorities discussed so far relate to the right to have the separation of the witnesses given by the common law. This right as it pertains to criminal procedure was crystallized into a statute in this State at an early date providing that on request of either party the witnesses may be sworn and placed in custody of an officer and removed out of the courtroom to some place where they can not hear the testimony as delivered by any other witness in the case. This is termed placing the witnesses under the rule. (Art. 719, C. 0. P.)
The impracticability of applying the rule to all witnesses has been recognized both under the common law practice and the enforcement of the statute mentioned. Thus persons assisting in the prosecution or defense and parties to the suit are among those who are exempt, and it happens at times that some witness or witnesses are discovered after the trial begins or by inadvertence overlooked at the beginning of the
trial, and who from these and other causes have heard spme of the testimony, and it has been generally held that in determining the circumstances under which such witnesses may or may not testify the court may exercise a judicial discretion, which will not be reviewed in the absence of its abuse. Vernon’s Ann.
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MORROW, Judge.
Appellant was indicted and convicted of murder and his punishment assessed at death.
The evidence was wholly circumstantial. There were more than ninety witnesses. Before the trial began the court asked if either party desired the rule. Beeeiving no reply, he directed the witnesses to take their seats. About that time appellant’s counsel requested the court to put the witnesses under the rule, and this request being refused, appellant excepted.
“The expedient of separating a party’s witnesses, in order to detect falsehood by exposing inconsistencies, seems to have been early discovered and long practiced in various communities. Though probably
not in itself older or more widespread than some other fundamental notions of proof, nevertheless its age and universality have come to be more emphasized in our own legal annals because of the instance recorded and handed down in the apocryphal scriptures. The story of Daniel’s judgment in Susanna’s case has given to this expedient a unique and classical place in our law as well as in our literature.” 3 Wigmore on Ev., sec. 1837, p. 2381.
The story of Susanna is familiar. Her accusers testified in the presence of each other to her guilt. She was about to be condemned when Daniel interposed, saying: “Put these two aside, one far from another, and I will examine them.” His examination disclosed such discrepancies in their testimony as resulted in the release of Susanna and the condemnation of her accusers. Since then the importance of the separation of witnesses has been regarded as a valuable adjunct to the cross-examination of witnesses and a right accorded whenever demanded in the trial of causes. 3 Wigmore on Ev., sec. 1837, p. 2382; Sir Walter Baleigh’s Trial, Jardine Crim. Tr., I, 419; Sidney’s Trial, 9 How. St. Tr., 817, 861; Bosewell’s Trial, 10 id., 147, 190; Cook’s Trial, 13 id., 311, 348, note; Fenwick’s Trial, id., 537, 722; Braddon, Observations on the Earl of Essex’s Murder, 9 id., 1229, 1278, 1283, 1294; 2 Bishop’s Crim. Proe., sec. 1188.
With reference to the matter Mr. Wigmore in his work on evidence (vol. 3, see. 1839, p. 2388) uses the following language: “Ho rule, therefore, should ever be laid down which will by possibility deprive an opponent of the chance of exposing perjury. Finally, it can not be left with the judge to say whether the resort to this expedient is needed; not even the claimant himself can know that it will do him service; he can merely hope for its success. He must be allowed to have the benefit of the chance, if
he
thinks that there is such a chance. To require him to show some probable need to the judge, and to leave to the latter the estimation of the need, is to misunderstand the whole virtue of the expedient, and too deny it in perhaps that very situation of forlorn hope and desperate extreme when it is most valuable and most demandable.”
From Watts v. Holland, 56 Texas, 54, we take the following quotation :
“The existence of the rule, as applicable to all kinds of cases, is not, of course, to be confounded with the regulations concerning its application to a given case. The common law rule of evidence and procedure confides to the judge a discretionary authority as to when the rule may be invoked and enforced.
In our State no such discretion is extended to the judge in criminal cases;
the statute, art. 662, B. S., Code Proe., gives the
right
to either party to invoke the rule. Brown v. State, 3 Texas Crim. App., 294.
“Whilst it is laid down by text-writers, whose conclusions are well supported by authority, that the enforcement of the rule lies within the discretion of the court, high authority is not wanting to maintain
the rule as one which parties are entitled to
demand
the enforcement of. Alderson, B., in Southey v. Nash, 7 C. & P., 632 (1 Greenl., sec. 432, note 1), expressly recognized it as 'the
right
of either party, at any moment, to require that the unexamined witnesses shall leave the court.’ ”
From the opinion in the same case we quote the following:
“As thus laid down by both of these standard authorities (1 Greenl. on Ev., sec. 431, and Phillips on Ev., vol. 2, p. 395), what is called 'a
rule’
seems to be intended as such
in fact,
as well as in
name;
a. definite regulation prescribed by the law for the conduct of trials — ■ uniform and universal, — to which all parties litigant are entitled, subject to such judicious regulations confided to the judge’s discretion as-right and justice exact. It is a
rude
for the ascertainment of truth, and the doing of justice, wherever the purposes of both require it; and being a
rule
of law to regulate trials, every citizen, under the Constitution and laws of the country, is entitled to its benefits as a part of the law. To capriciously deny it to him to the deprivation of his property, would be to do so without sanction of law — 'the law of the land.’
“The refusal in a proper case, to administer to a party the benefits of a rule of law, on which the security in his rights of property depended, . . . would amount, in effect, to the substitution of an unregulated, and, as it might be, capricious and despotic,
discretion in name,
but mere personal
will
in fact, for the 'law of the land.’ ”
From the opinion of Judge Wheeler, in the case of Hipp v. Bissell, 3 Texas, 18, we quote the following:
“When there is no rule, or when the rule is inapplicable, or does not afford a perfect guide, then there is room for discretion, and from the necessity of the case it must exist. There may be cases to which no known rules or fixed principles can be applied; and the discretion which must be exercised can not be the subject of revision. But when there-are known rules of action prescribed, there can be nowhere a discretion to dispense with those rules.”
The text-writers and authorities discussed so far relate to the right to have the separation of the witnesses given by the common law. This right as it pertains to criminal procedure was crystallized into a statute in this State at an early date providing that on request of either party the witnesses may be sworn and placed in custody of an officer and removed out of the courtroom to some place where they can not hear the testimony as delivered by any other witness in the case. This is termed placing the witnesses under the rule. (Art. 719, C. 0. P.)
The impracticability of applying the rule to all witnesses has been recognized both under the common law practice and the enforcement of the statute mentioned. Thus persons assisting in the prosecution or defense and parties to the suit are among those who are exempt, and it happens at times that some witness or witnesses are discovered after the trial begins or by inadvertence overlooked at the beginning of the
trial, and who from these and other causes have heard spme of the testimony, and it has been generally held that in determining the circumstances under which such witnesses may or may not testify the court may exercise a judicial discretion, which will not be reviewed in the absence of its abuse. Vernon’s Ann. C. C. P., art. 719, and cases cited.
Many cases are listed at pages 398-399, Vernon’s Ann. C. C. P., illustrating the application of this principle to various states of fact, and finally the rule deduced from these cases is stated at page 399, as follows:
“On any trial, at the request of either party, the witnesses may be placed under the rule, and those summoned for the prosecution may be kept separate from those summoned for the defense, if the court sees proper to so direct; and they may be placed in the custody of an officer or be allowed to go at large, under a like discretion. The trial judge is invested with a wide discretion in all matters relating to this procedure, and such discretion will not be revised on appeal unless it has been abused, but the right to have witnesses placed under the rule is a right given by law, and it should not be denied or substantially abridged at the arbitrary discretion of the judge. McMillan v. State, 7 Texas Crim. App., 142; Walling v. State, id., 625; Shields v. State, 8 id., 427; Estep v. State, 9 id., 366; Avery v. State, 10 id., 199; Johnson v. State, id., 571; Hoy v. State, 11 id., 32; Cross v. State, id., 84; Powell v. State, 13 id., 244; Walker v. State, 17 id., 16; Kennedy v. State, 19 id., 618; Bond v. State, 20 id., 421; Goins v. State, 41 Texas, 334; Sherwood v. State, 42 Texas, 498; Brown v. State (Crim. App.), 59 S. W. Rep., 1118.”
In Clary v. State, 68 Texas Crim. Rep., 290, 150 S. W. Rep., 919, this court, in an opinion written by Judge Harper, used the following language: “The court in approving the bill states that, when the witnesses were sworn, he asked if it was desired that the witnesses be placed under the rule, and no request-was made, but that subsequently defendant did make the request. We will state that, when the request was made, it should have been granted, as article 719 of the Code of Criminal Procedure gives to the defendant the right to make this demand at any time while the evidence is being heard.”
The question here presented is not one in which one or more witnesses are excused from the rule and permitted to testify, but it is one in which the question presented to the court is, whether the arbitrary denial by the trial court of the right to have the witnesses separated when testifying can be sanctioned by this court.
The appellant’s defense was insanity. He introduced some thirty wit- ■ nesses on the trial. These with the sixty witnesses introduced by the ¡State were permitted to remain in the courtroom during the trial and hear all the testimony.
This court, in the case of Heath v. State, 7 Texas Crim. App., 464, said: “While the law invests a large discretion in trial judges as to the examination of witnesses and the enforcement of the rule when
the same has been requested hy either party, yet this discretion is not arbitrary, nor is the statute giving the right merely directory and to be disregarded at pleasure. The right to enforce the rule is a right given by law, and it should neither be denied nor substantially abridged at the arbitrary discretion of the presiding judge.
Being a right guaranteed by law, a defendant should not after a request for its enforcement be deprived of its benefit, unless it should clearly appear that no possible injury could result to Mm from its relaxation.”
The statute guarantees a substantial right. That the statute should not be annulled by judicial interpretation is to the interest not only of the appellant in this particular case but to the interest of society, the State. To require the appellant to point out with particularity the effect of the refusal of the trial court to accord him the statutory right to have the witnesses put under the rule would be practically to deny him the right. As said hy the Supreme Court in Watts v. Holland, 56 Texas, 54, “it would be in its effect a breach of judicial trust to deny the appellant its benefits when the rule is in effect under such circumstances.” What discrepancies might have been disclosed hy the cross-examination of the witnesses testifying separately, what links in the chain of circumstantial evidence might have been left in. doubt, what additional facts on the issue of,insanity might have been disclosed had the trial been conducted according to law, are necessarily matters for conjecture. It does not “clearly appear that no injury could have resulted.” We do know that in the trial thus conducted the appellant has been condemned to suffer not only the highest punishment prescribed for the offense but the highest punishment that man has the power to inflict.
Chief Justice Phillips, delivering the opinion of the Supreme Court, in Scott v. Townsend, 106 Texas, 339, said:
“A legal trial is as important as a correct result. We have no disposition to lightly reverse the action of a trial court. Without any tendency to emphasize errors that are immaterial its judgment should be accorded the presumptions- the law imparts to it. But the rules of law, hy. whose observance only can rights be legally determined, are entitled to the same deference, and' have an equal claim upon the conscience of a court.”
Conscious of the fact that appellant has not received a legal trial, uncertain as to the consequences thereof upon his case or upon the punishment, we are constrained by a sense of duty to award him another trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.