
    CLAYTON v. STATE.
    (No. 3750.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Chimin An Law &wkey;>596 — Preliminary Proceedings — Continuance — Cumulative Testimony.
    The question of whether testimony of a witness, for whose absence a continuance is sought, is cumulative is immaterial on the first application for a continuance.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. &wkey;> 596.]
    2. Cbiminal Law <&wkey;917 — New Trial — Excluded Evidence — Admissibility.
    It is not error sufficient to warrant a new trial to refuse a continuance for taking the testimony of a witness, by whose affidavit it appeared that he could only testify as to what a certain witness had told him when that witness was not allowed to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2161, 2162; Dec. Dig. <&wkey;> 917.]
    3. Criminal Law <&wkey;598 — Refusal of Continuance-Absence of Witnesses — Diligence.
    That defendant was refused a continuance on account of the absence of two witnesses was not alone a ground for reversal, where summons had been sent to another county for them, and the sheriff had written the clerk of courts of the trial county that he could not locate them, asking a complete description, and the clerk had filed his letter with the papers of the case, but failed to notify the defendant or his counsel of it; such facts not showing due diligence on the part of the defendant.
    [Ed, Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. <&wkey; 598.]
    4. Criminal Law <&wkey;G65 — Exclusion of Witnesses — Invocation oe Rule — Discretion of Court.
    Where, in a prosecution for perjury, two of defendant’s witnesses were not allowed to testify because of failure properly to summons them, and three others were not allowed to testify because the rule had been called for and they had heard some of the state’s testimony before being placed under the rule, and all the testimony of the five witnesses as shown by affidavit would have been material on the issue of whether the defendant falsely testified in another trial, conviction will be reversed, where the loss of the testimony was not due to the fault of the defendant, although the court on appeal will not ordinarily interfere with the exclusion of testimony by the trial court, in its discretion, where the rule has been invoked.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1549-1566y2 ; Dec. Dig. &wkey; 665.Í
    5. Criminal Law <&wkey;396 — Perjury <&wkey;32— Evidence — Admissibility.
    In a prosecution for perjury, alleged to have been committed by defendant’s swearing in another trial that a certain man was not present, and that no gambling was done in a room where the state alleged his presence and the gambling, it was error to admit evidence that one of those present pleaded guilty to gambling, but, that having been admitted, the defendant should have been permitted to show that those who pleaded not guilty were acquitted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. &wkey;> 396 ; Perjury, Cent. Dig. §§ 108-116; Dee. Dig. @=32.]
    6. Criminal Law &wkey;>922 — New Trial — Instructions — Objections.
    Under Pen. Code 1911, art. 310, fixing the minimum penalty for perjury at two years, where the court instructed that the minimum was five years, and the jury assessed the minimum as stated, the error being fundamental and prejudicial to the defendant, could be complained of on motion for new trial, and was not waived by failure to object to the charge on the trial, in spite of Code Cr. Proc. 1911, art. 743, requiring all objections to charges to be made on the trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. @= 922.]
    7. Criminal Law <&wkey;508 — Witnesses under Indictment — Competency.
    That two or more witnesses were indicted for perjury in the same case would not render them incompetent, in the absence of a conspiracy between them and defendant to commit the perjury, since an indictment does not render accused incompetent as a witness unless he is charged with being an accomplice, accessory, or principal in the offense for which the person is on trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. &wkey;> 508.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Eayette County; Prank S. Roberts, Judge.
    Henry Clayton was convicted of perjury, and he appeals.
    Reversed and remanded.
    The qualifications referred to in the dissenting opinion, paragraph 1, are:
    “The foregoing bill of exceptions is approved with the following qualification and explanation : The motion for continuance was contested by the state and application was overruled, and same was assigned as error in defendant’s motion for new trial, which was likewise contested by the state. It appears from the record in the case that the testimony of Will Sief-kin was not material to the defense, as shown by his affidavit attached to and made a part of state’s contest to new trial and also made a part of this qualification, and it appears that counsel for defendant failed to use due diligence to obtain the testimony of the witness Perry Hornsby, as is shown by state’s contest to motion for new trial, paragraph 3, and affidavit of the district clerk, all of which is made a part hereof. Counsel for defendant failed or refused to inform clerk whether witness Hornsby was white or black, or give him any assistance to location [of] said witness, other than shown by clerk’s affidavit.”
    On page 78 is paragraph 3 in state’s contest, as follows:
    “3. The court did not err in refusing'to grant defendant’s application for a continuance on account of the absence of Perry Hornsby, because one of the attorneys of record for the defendant, in filing his application with the district clerk for his witnesses, simply stated in Ms application the following: ‘Perry Hornsby, Plum, Texas, or Cameron, Texas’ — as is shown by the application of defendant for subpoenas for witnesses filed herein on May 3, 1915, marked ‘Exhibit A,’ attached hereto, and made a part hereof; that the district clerk at the time asked said attorney, John T. Duncan, to give him some better description as to the avocation and location of said witness, which the said attorney failed and refused to do, as shown by the affidavit of the district clerk hereto attached, marked ‘Exhibit B,’ and made a part hereof; that thereafter, to wit, on May 6, 1915, four days prior to the time that this cause was set down for trial, the district clerk received a postal card from Allen Hooks, sheriff of Milam county, requesting some further description of the witness Hornsby; that this postal card was filed with the papers in this cause on May 6, 1915, which card is hereto attached, marked ‘Exhibit C,’ and made a part hereof; that defendant and his counsel made no effort to procure the attendance of this witness, except as is set out in the application marked ‘Exhibit A,’ as stated above.”
    The qualifications referred to in the dissenting opinion, paragraph 2, are:
    “The above-named witnesses were in the courtroom at the time counsel for defendant invoked the rule; all other witnesses were placed under the rule, and wore retired from the courtroom under proper instructions, and after the state had rested defendant offered these witnesses who had not theretofore been sworn and who had remained in the courtroom and heard the greater part of the trial, and especially a greater part of the state’s case. If counsel instructed these parties to stay out of the courtroom the court was not so advised during the trial, and said negro witnesses did not stay out of the courtroom during the examination of the principal state’s witnesses, and, the rule having been invoked by counsel for defendant, and no valid reason appearing why said rule should be modified, the objection by the state was sustained for the reasons assigned in state’s contest to motion for new trial as set out in paragraph No. 7, and made a part hereof.”
    On page 80 is paragraph 7 in state’s contest of motion, as follows:
    “7. The court did not err, as alleged in defendant’s motion for a new trial in section 22, in refusing to permit the witnesses Rich Henderson, Will Zachary, and Will Steward to testify, because defendant’s counsel had invoked the rule as to witnesses and failed and refused to have the said three above-named witnesses sworn with the other witnesses and placed under the rule, and all three were in attendance upon the court, and were in the courtroom when the other witnesses were sworn and placed under the rule; and, after they had heard a part, if not all, of the state’s witnesses testify, defendant’s counsel then sought to have these three witnesses to testify in the case in behalf of the defendant. To have permitted them to testify would have been an injustice to the state, especially in view of the fact that all three of them then had indictments pending against them, wherein they were charged with perjury alleged to have been committed in the trial of the same case in the county court in which it is alleged this defendant committed perjury.”
    Duncan & Burleson, of La Grange, for appellant. G. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at five years’ confinement in the state penitentiary.

It appears that one Rich Henderson was tried in the county court on an information containing two counts; one charging that on the 11th day of November, 1913, the said Henderson did unlawfully bet and wager money at a game played with cards, the other count charging that Henderson did knowingly go into and remain at a place where a game of cards was being played. On the trial of that case it is alleged that appellant testified that there was no card playing going on in the room alleged at that time, and that Henderson was not present in said room at the time alleged, and upon this testimony the charge of perjury is based. That appellant was duly sworn and so testified on the trial of said Henderson is not contested, he contending on this trial that he did so testify, and that his testimony was true. To show the materiality of the hereinafter recited matters, we will anote one paragraph of the court’s charge:

“You are further instructed, if you find from the evidence, or have a reasonable doubt thereof, that the said Rich Henderson, referred to in said indictment, was not in fact present at the time and place of the alleged games of cards, if any, in the town of Plum, referred to in the indictment in this case, then, in that event, you will find the defendant not guilty.”

Thus it is seen the court, under this record, made the guilt or innocence depend on the presence of Rich Henderson in the room where the gambling is said to have taken place. On the trial of the case J. M. Richardson testified he was a deputy sheriff, and that he went into this room, and they were playing cards; that he took down the names of some 10 men in the room, and filed a complaint against them; that he did not take down the name of appellant, nor Rich Henderson; that some one got out of the window, and he was afterwards informed that it was Rich Henderson who got out the window, .and a complaint -was filed against him. Appellant, on the trial of the Rich Henderson case, and on the trial of this case, swore he was the person who got out of the window, and that it was not Rich Henderson. Under this record it is manifest, under the charge of the court, if it was appellant who got out of the window and not Henderson, he was entitled to be acquitted. The whole case hinges around the identification of the man who got out of the window, the state’s case being that it was Rich Henderson, and appellant’s that he was the man who got out of the window.

The indictment against appellant was returned April 30, when he was arrested. On May 3d, among other witnesses he secured process for Will Siefken to Jackson county, and to Milam county for Perry Hornsby. Neither of them were in attendance on court, and when the case was called for trial on May 10th, appellant moved to continue the case on account of their absence. This was the first application for continuance. So the question of cumulative testimony is immaterial. By the witness Perry Hornsby he stated he expected to prove—

“that he was in the house in the rear of Morgan’s saloon where it is claimed that Rich Henderson was dealing monte, and other persons were present, and by the witness Perry Horns-by this defendant expects to prove that he was in Morgan’s saloon at the same time the witness J. M. Richardson was in said saloon, and that the said Perry Hornsby entered said room just in advance or just ahead of the state witness J. M. Richardson, and by this witness the defendant expects to prove that Henderson was not present and was not gambling or dealing monte and by this witness this defendant expects to prove that no gambling was going on in said room at the time.”

The state’s witness Richardson testified he went from the saloon to this room where he says gambling was going on, and the testimony of this witness Hornsby would be in direct conflict with the testimony of Richardson. The materiality of this testimony is not questioned by the court, but he says that appellant did not use diligence, in that after the sheriff of Milam county had received the process he wrote to the district clerk of Payette county:

“You sent me subpoena for Perry Hornsby. Oan’t locate him. Is he white or colored? Where does he live? Give all information about him.”

The clerk received this request on May 6th and filed it with the papers, but did not answer nor call appellant’s attention to it, and appellant and his counsel say they had no information in regard to it until this case was called for trial.

As to the witness Siefken, the state attaches his affidavit to its contest of appellant’s motion for new trial, evidencing that he in fact was in Jackson county, and if process had been properly served when sent, his attendance could have been obtained. In the affidavit he states he did not see who got out of the window, but says he was told at the time it was appellant, and not Henderson, by Will Steward. If this was all that appellant stated he expected to prove by him, it would not present error, as the court did not permit Will Steward to testify. If Steward had been permitted to testify, and it was sought by the state to impeach his testimony, then the testimony would have been admissible, but, in addition to this, appellant swears he expected to prove by Siefken the following facts:

“The evidence for the state and the defense will show that there were 10 or 12 parties in said room at the time the said Richardson entered, and the evidence will show that 1. party in said room made his escape out of a window. And the chief issue in the trial of Rich Henderson in the county court was as to whether Rich Henderson was in said room at the time it was entered by the said Richardson, and whether or not Rich Henderson made his escape out of said window, and by the witness Sioflcen it is expected to be proven that he entered said room shortly after it was entered by the state witness Richardson, and he will swear that he saw no gambling going on, that he saw no cards on the table and no money on the table and that the house was not a gambling house, and was not used for that purpose, and that if it was used at all, it was used by persons who desired to drink beer or other liquors privately, and, further, that said absent witness saw this defendant in the village of Plum on that day, and he did not see Rich Henderson and this defendant at the time he was pointed out to said witness as the party who got out' the window.”

Thus it is seen that appellant states he can prove by Siefken that he went into this room and will swear he saw no gambling going on; that he saw no cards on the table, and that the room was not used for a gaming room, but one in which to drink beer. This was on a material issue in the case, and he says, furthermore, that witness will swear he saw appellant there at the saloon and did not see Henderson. This would have an indirect, if not a direct, bearing on which one of the two got out of the window, and Siefken’s affidavit and testimony given on the trial of the case in the county court, showed he would have so testified.

If this was the only matter complained oí in the record, we might hesitate to reverse the case on account thereof, taking into consideration the qualification attached to the bill by the court. But in another bill it is shown that during the trial of the case appellant called Rich Henderson, Will Zachary, and Will Steward as witnesses in his behalf, and states:

“By the witness Rich Henderson the defendant expected to prove that he was not at Plum on the 11th day of November, 1913, and was not in the room in the rear of Morgan’s saloon on that day or at any other date; that at the time when this alleged offense was committed, he was at work for Dr. Crutzbauer on Dr. Crutz-bauer’s farm over seven miles distant, from Plum or from Morgan’s saloon; that he was not in the said building, and was not the person who got out the window, when Richardson and his witnesses appeared at the door of the room and arrested all the parties remaining in said room. This is the person who appellant is alleged to have testified falsely was not present on the occasion mentioned.
“By the witness Will Steward he expected to prove that ho, Will Steward, was in said room at the time Richardson entered the same, and that Will Steward knew Rich Henderson, and by Will Steward he expected to prove that Rich Henderson was not in said room at that time, or at any time before or at any time thereafter, while the said Richardson was arresting, or attempting to arrest, the parties in said room, and by said Will Steward he expected to prove that he (Henry Clayton) jumped out the window and made his escape, and that Rich Henderson was not in the room, and Rich Henderson did not get out that window.
“By the witness Will Zachary he expected to prove, and would have proven, that Zachary was in said house when Richardson and his assistant witnesses entered the same, that Will Zachary knew Rich Henderson, and that Rich Henderson was not in said room, and had not been in said room, and that Rich Henderson was not the party who got out the window, but the defendant was the party that got out the window.”

It is thus seen that the testimony of each of these witnesses would have borne directly upon the material issues in the case. The court excluded each of the three witnesses named on the ground that the rule had been demanded by appellant, and these witnesses had heard a portion of the testimony offered by the state before they were placed under the rule. Appellant was deprived of the testimony of five of his most material witnesses, whose testimony went direct to the issues involved, and the testimony of all of whom would support appellant’s testimony and his contention. He was forced to rely on the testimony of himself and Louis Burrell alone, on the issue as to whether gambling was going on in the room, and whether or not Henderson was in the room. Ordinarily we will not disturb the action of the court in excluding testimony where the rule has been invoked. It is a matter confided to the trial court’s sound discretion. But in a case like this, where the person on trial has been deprived of all his witnesses (except one) on the material issues in the case, and it is made to appear that they would testify to these material facts, three of them being in attendance on court, and through no fault of appellant he has been deprived of their testimony, we are inclined to think the court erred in not granting him a new trial. Each of the bills might not, in and of themselves, present reversible error, but when we consider them together and see that appellant was deprived of the testimony of five of his most material witnesses, a greater number than who testmed for the state that gambling was going on in the room, and that Henderson was present, it appears that appellant has not had the issue of his guilt or innocence fairly determined. If Henderson was not present, as the testimony of all of these witnesses would tend to show, then the state’s case must and would fail, for he is the man the state’s witnesses say was dealing the cards. So the question of his presence on this occasion, as shown by the charge of the court, was necessary' to be shown, and the testimony of all five of these witnesses would tend strongly to negative his presence in the room on that occasion.

The result of the trial of Rich Henderson in'the county court could not ordinarily be shown, and the court would not err in so holding. The result of his trial, and that of any of the others charged with gaming on that occasion, would not be admissible on this trial, and on another trial the court should not only exclude the testimony as to the result of that trial, but exclude as well the result of the trial of any and all the others. However, on this trial the court permitted the state to prove that one of the men, Will Zachary, pleaded guilty to a charge of being a common gambler, filed against him on the occasion in question. If the state was permitted to prove that one of them pleaded guilty to being a common gambler, then in justice and fairness appellant ought to have been permitted to prove that those charged on that occasion who contested their cases were adjudged not guilty. This would be but common fairness, and especially does the injustice appear in this case when it is shown that Will Zachary was one of the witnesses for defendant who was not permitted by the court to testify, and who, the bill shows, would have testified in behalf of appellant that Henderson was not present, and doubtless would have explained why his plea of guilty to being a common gambler was entered. However, on another trial the court will exclude the result of the trials of all the others, whether adjudged guilty or not guilty, for as the court or jury found in those cases should not be used to affect the finding of the jury in this ease. They should pass on that question uninfluenced by the verdict or finding in any other case.

Again the court instructed the jury that the punishment for perjury was not less than five years, nor more than ten years, and instructed the jury if they found appellant guilty to assess his punishment at not less than five years, nor more than ten years. The jury assessed the punishment at the least term authorized by the charge — five years. The state admits this was error, as the statute fixes the minimum punishment at not less than two years. Article 310, P. C. While admitting this was error, the state insists that, as the charge was submitted to appellant’s counsel, and no exception was taken to the charge in this respect, it was too late to complain of this error in the charge after verdict in the motion for a new trial, and cites us to the cases of Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867; Robbins v. State, 57 Tex. Cr. R. 8, 121 S. W. 504; Work v. State, 3 Tex. App. 233. Also a large number of other cases, wherein we have held, since the amendment of old article 723 (now 743) Code Cr. Proc., if the charge is submitted to appellant’s counsel, we will not reverse the case if exception is not reserved at that time. This is the general rule, and one to which we have always heretofore and will hereafter adhere, but to each and all of those instances an exception has been noted, and that is, where fundamental error is shown, we will take notice of it, even though complained of for the first time in this court. Many cases have been reversed because of fatal defects in the indictment, although complained of for the first time in this court. Hunter v. State, 73 Tex. Cr. R. 460, 166 S. W. 164; Johnson v. State, 41 Tex. 65. Cases have been reversed because the court authorized a conviction for assault to rape when the indictment charged attempt to rape. Shockley v. State, 71 Tex. Cr. R. 475, 160 S. W. 452; Wyvias v. State, 64 Tex. Cr. R. 236, 142 S. W. 585. Many other similar instances could be cited where cases have been reversed, although not complained of until after verdict, if the error pointed out was a fundamental one. So the question in this case, as the error was not pointed out until verdict, is, Is the error a fundamental one? If it is, we are authorized to review the action of the trial court in refusing to grant a new trial because of said error. If it is not a fundamental error, then, as appellant did not except to the charge when presented to him, we cannot review the action of the trial court in overruling the motion for a new trial because of said error admitted to be in the charge of the court. What is, and what is not, fundamental error has been many times discussed, but no definite rule has been announced by our decisions, so far’ as we have been able to ascertain. The contention that this is not a fundamental error has support in the cases of Work, Robbins, and Manning, supra. In the Work Case, the court erroneously instructed the jury as to the punishment for aggravated assault, but as the jury assessed the minimum punishment authorized by law, such error was held not to be ground for reversal, although the case was reversed on other grounds. In the Robbins Case the minimum punishment was also assessed, and authorized by the charge, although the punishment was not correctly stated. It was held too late to complain of the matter after verdict. In the Manning Case, the appellant was charged with perjury, and the court in that case made the same mistake in his charge as was made by the court in this case, fixing the minimum punishment at five years, when it should have been only two years. The court held that as the punishment was assessed at seven years, and was within the limit fixed by law, it was too late to complain of the matter after verdict. If this was an original proposition, the writer would hold that where the court incorrectly stated the minimum punish-. ment, and the verdict of the jury assessed more than the minimum punishment fixed by law, it would be such an error as could be complained of at any time. The jury in this case gave the minimum punishment authorized by the charge of the court, and who can say they would not have assessed the minimum fixed by law had the court authorized them to do so in his charge? Three years taken out of one’s life by confinement in the penitentiary is a great length of time, and we nor any one else can say, under this record, that if the law had been correctly stated in the charge to the jury they would have assessed more than the minimum fixed by the law as punishment for this crime. Our civil courts have held:

“The error is a fundamental error which goes to. the merits of plaintiff’s cause, * * * and will be considered whether assigned as error or not, whore the justice of the case seems to require it.” Hollywood v. Wellhausen, 28 Tex. Civ. App. 541, 68 S. W. 329, City of Laredo v. Russell, 56 Tex. 398.

See, also, Jenkins v. State, 28 Tex. App. 86, 12 S. W. 411; Graham v. State, 29 Tex. App. 32, 13 S. W. 1013; Williams v. State, 25 Tex. App. 76, 7 S. W. 661, and cases cited in section 2348, Willson’s Crim. Code.

In the Work and Robbins Cases the minimum punishment authorized by law was assessed, and we think the court correctly held such error under such circumstances presented no reversible error. In the Manning Case more than the minimum authorized by the court in his charge was assessed. So it could not be said if the court had authorized a lower punishment the jury would have assessed it. But this case is different from either of those cases; the jury did assess the lowest punishment authorized by the charge of the court, but more than double the minimum punishment fixed by law. In this character of case the writer thinks such error should be considered, even though not complained of until in the motion for a new trial. This gives the trial court an opportunity to correct his own errors, and award a new trial, and where one is manifest, and admitted to be error, and which error may have contributed to more than doubling the punishment that might otherwise have been assessed against one on trial, a new trial should have been granted. At least, this case should be reversed on account of the other matters herein discussed.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). 1. The state contested appellant’s motion for a continuance, and also his motion for new trial on the same ground. The court correctly overruled both, and gave the reasons in his qualification of his bill, which are borne out fully by the record. The reporter will quote the judge's qualification on pages 57 and 78 of the record.

2. The witnesses Rich Henderson, Will Zachary, and Will Steward sought to be introduced by appellant, were under indictment for perjury in the same case and transaction as appellant was in this case. Under the proper construction of article 91, P. C., and article 791, C. C. P., I think they ought to be held incompetent (Crutchfield v. State, 7 Tex. Cr. App. 65), but even if they were not incompetent, the court was right in refusing to permit them to testify because appellant had not had them placed under the rule. The reporter will quote the court’s qualification of appellant’s bill on pages 44 and 80 of the record.

3. The statute by the act of April 5, 1913, page 278, was passed expressly for the purpose of preventing new trials and reversals because of just such inadvertent omissions as to the penalty in the court’s charge as was made in this case, and such an error is not and cannot be fundamental. If advantage can be taken of such an error by motion for new trial, then the statute is vain and ineffective; hut it is not so, as all the time heretofore held by this court construing it. This case should not be reversed, but affirmed.

HARPER, J.

I did not know, at the time of writing the original opinion, it would be contended that, as the witnesses were indicted for perjury, this would render them incompetent as witnesses, and did not discuss that feature. That two or more witnesses were indicted for perjury on account of their testimony in a given ease would not render them incompetent, unless it was contended they had entered into a conspiracy to do so, and they had been so indicted. An indictment does not render a person incompetent as a witness, unless the witness is charged with being an accomplice, accessory, or principal in the commission of an offense for which the person is on trial. Article 791, C. C. P. Seeker v. State, 28 Tex. App. 479, 13 S. W. 774, Gray v. State, 24 Tex. App. 611, 7 S. W. 339, and Anderson v. State, 56 Tex. Cr. R. 369, 120 S. W. 462, are strictly in point. 
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