Sanderson v. State

287 S.W. 251, 105 Tex. Crim. 198, 1926 Tex. Crim. App. LEXIS 478

• Court: Court of Criminal Appeals of Texas
• Decided: April 14, 1926
• Docket: No. 10116.
• Status: Published

Opinions

LATTIMORE, Judge.

Conviction in District Court of Wilbarger County of embezzlement, punishment fixed at two years in the penitentiary.

The facts seem ample to support the conviction. Appellant filed a motion to continue the case, based apparently upon the sole proposition that he had not been permitted to have a private interview with his counsel. It appears from said motion that appellant was imprisoned under the indictment herein on October 27, 1925, and remained in jail until the date of this trial, to-wit: November 5th of said year; that he obtained' counsel three days before the date of his trial, said counsel living at Wichita Falls, in a neighboring county; that said counsel went to Vernon on the 4th of November, and on three occasions that afternoon talked to appellant in the jail. It is set up that at these interviews the jailer remained within a few feet of where appellant and his counsel were talking and that they were unable to go over the merits of defendant’s case. It is further set up that said jailer refused to let appellant’s counsel confer privately with him. The bill of exceptions complaining of this matter is qualified by the statement that the person seen by appellant’s counsel on his visits to the jail was a jail guard, and that the jailer was not seen, nor was any request made either of the court or district attorney for instructions to permit the appellant’s counsel to have a private interview with him.

It may be necessary for the orderly conduct of our jails that certain rules be made regarding visits to prisoners, and who may give permits to persons to see such prisoners; and the statement that neither appellant nor his counsel ever applied to the jailer, or to the court or to the district attorney, for permission to have a private talk with appellant, seems without dispute. It is obvious from the motion that appellant was not denied the privilege of a consultation with his attorney. It is true that the privilege of a private consultation is also one which should be accorded, and if it be shown by any kind of testimony, or be a fair conclusion from the showing made, that the accused has been denied the right of counsel or the right to a private interview with such counsel, the case might be different. Where there is no showing of an effort on the part of appellant or his counsel to see persons in authority in order that a private interview, if desired, may be had between them, and especially where there is no showing of any injury, this court will not reverse.

No effort was made by appellant to procure any witnesses in this case, nor is it shown that by having a private interview thfe names of any persons desired as witnesses could have been ascertained or suggested; nor is there any showing that there was any defense which could have been interposed in this case with which appellant’s counsel could have been made familiar or aware by a private interview. It was stated by appellant’s counsel in the presentation of this case to this court that he was accorded a private interview with his client before announcing ready for trial.

Occurrences of this kind are to be regretted and should be avoided, but this court cannot punish society by the reversal of cases unless there is some showing of possible injury in the improper matter complained of.

We have carefully considered the exceptions taken by appellant to the court’s charge, but fail to find anything therein deemed by us erroneous. The complaint of the action of the court in regard to the grand jury is without merit.

Finding no error in the record, the judgment will be affirmed.

Affirmed.