Fay William Bonner, Appellant, v. Dr. George J. Beto, Director, Texas Department of Corrections, Appellee, 373 F.2d 301 (5th Cir. 1967)

This is an appeal in forma pauperis from the District Court's denial of appellant's petition for a Writ of Habeas Corpus.

Bonner and his wife were indicted separately in the state courts of Texas for the same burglary. Immediately prior to appellant's trial his wife pleaded guilty and was given probation. When appellant attempted to call her as a witness at his trial, the state trial judge refused to allow her to testify because of Article 711 of the Texas Code of Criminal Procedure, which declared co-principals incompetent to testify for a principal.¹  No witnesses appeared for the accused. Bonner was convicted of burglary enhanced by prior convictions and given a life sentence as an habitual offender. The Texas Court of Criminal Appeals upheld the application of the Texas statute in Bonner's trial without discussing federal constitutional issues. Bonner v. State, 375 S.W.2d 723, (Tex.Crim.App., 1964).²  Having exhausted his state remedies Bonner sought but was denied the Great Writ in the United States District Court.

The issue we are called upon to decide is whether it is a denial of Fourteenth Amendment due process for a state trial judge to refuse to allow a principal to call a co-principal, indicted in a separate indictment for the same offense, as a witness on his behalf, because a state statute declares a co-principal incompetent to testify on behalf of a principal.

Bonner testified that he was returning the goods his wife had stolen. It, therefore, became imperative to his defense that his testimony be corroborated, if possible. His wife was the only one who could do so. She was not allowed to testify, however, and there were no other witnesses called on his behalf. The defendant stood alone.

Article 711 is an outgrowth of the common-law's abhorrence of "the idea of any person testifying who had the least interest." State v. Barrows, 76 Me. 401, 409. In his Commentaries, Blackstone stated the settled common-law rule to be that " [a]ll witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause." 3 Bl.Comm. 369.

Wigmore reduced the interest disqualification theory to a syllogism based on the fallacious premises that witnesses who would probably speak falsely should be totally excluded as witnesses and that interested persons are specially likely to speak falsely and therefore should be excluded.³  Thus, indictees and defendants were not competent to testify for themselves or for or against their co-indictees or co-defendants. The courts were divided, however, on whether or not, as here, a person indicted separately for the same crime with which the defendant was charged was competent to testify on behalf of the defendant.⁴ 

Beginning early in the 19th Century, attacks were made on the disqualification for interest. The removal of the disqualification of interested non-party witnesses in civil cases fell first. See Lord Denman's Act of 1843, 6 and 7 Vict., c. 85. Next, party witnesses in civil cases were declared competent by the County Courts Act of 1846, 9 and 10 Vict., c. 95 and Lord Brougham's Act of 1851, 14 and 15 Vict. c. 99.⁵  Maine was the first jurisdiction to allow an accused in a criminal prosecution to testify for himself. Maine Acts 1859, c. 104. Texas followed suit in 1889.⁶  Every state adopted a similar statute except Georgia.⁷  The object of these statutes was plainly to remove the disqualification of the accused as a party. 2 Wigmore, supra § 580. It would seem that the disqualification of a co-indictee, a co-defendant or a person indicted separately for the same crime should have been removed also; for they were disqualified solely because they were interested parties, and they obviously had less interest in the outcome than did the accused himself. But in the Texas statute, as in other states,⁸  the accused was declared competent to testify "on his own behalf",⁹  thus omitting in terms to provide that he be a competent witness on behalf of or against another defendant. Notwithstanding the fact, however, that the historical reasons for the interest disqualification rule had been shown to be unsound and it was discarded, Article 711 and its counterpart¹⁰  survived successive revisions of the Texas Codes.

The Fourteenth Amendment leaves Texas free to adopt whatever statute or decision she elects concerning the competency of various classifications of witnesses to testify, whether or not her rule conforms to that applied in the Federal Courts or in other state courts. But as the Supreme Court said in Lisenba v. People of State of California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 (1941), " [T]he adoption of the rule of her choice cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law."¹¹  314 U.S. at 236, 62 S. Ct. at 290.

The district court held that because the testimony of Bonner's wife was self-serving,¹²  its prohibition was a reasonable policy and was consistent with the Fourteenth Amendment. We disagree and view the determination of the credibility of a witness' testimony as a function of the jury.

We hold that the application of Article 711 of the Vernon's Ann.Texas Code of Criminal Procedure to Bonner worked a deprivation of his liberty without due process of law under the Fourteenth Amendment.

In view of our holding, we do not reach appellant's contention that the Sixth Amendment's right of an accused "to have compulsory process for obtaining Witnesses in his favor" is incorporated in the Fourteenth Amendment's due process clause.

The judgment of the district court is reversed and the cause is remanded with directions to give to the state of Texas a reasonable time within which to grant a new trial to the appellant, failing which the writ shall be granted.

Reversed and remanded.