author: CHRISTIAN, Judge. MORROW, Presiding Judge.

text:
    EVERETT v. STATE.
    No. 14489.
    Court of Criminal Appeals of Texas.
    March 30, 1932.
    Rehearing Denied Feb. 15, 1933.

      A. R. Stout, of Ennis, and Tom Whipple, A. D. Emerson, John Hatter, and Will Hancock, all of Waxahaehie, for appellant. •
    Archie D. Gray, Co. Atty., of Waxahaehie, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

J. C. Rose and Spencer Adams, both of whom were white men, and Alto McGowan, a negro, testified for the state, in substance, as follows: The three of them came from Dallas into Ellis county on the night of January 28, 1931, to make a delivery of five cases of whis-ky at the underpass bétween Red Oak and Waxahaehie, Tex. The whisky was to be delivered to Stacy Childress, whom the parties believed to bear the name “Bill Green.” They arrived with the whisky some time between 7:30 and 10 o’clock at night, and, being apprehensive, they went on up the road two or three miles, put the whisky out of the car, and came back and stepped at the car occupied by Stacy Childress. While talking to Childress, appellant and one J. W. Cadle came running up from a Eord roadster they had .parked up the road behind Childress’ car, and told them to “stick them up”. Appellant had a flash-light and J. W. Cadle a pistol. Cadle directed the pistol at the witnesses. Childress searched Adams and Rose. He took 55 cents off of Rose but put it back in Rose’s pocket, saying that he was a “cheap s-of a b-of a bootlegger.” He got nothing off of Adams. Childress then searched Alto McGowan and took $95 from him. The witnesses- were then told to get down the road, and they left in their car, going toward Dallas. A Chevrolet roadster followed them for a long way toward Dallas. After reaching Dallas, the witnesses immediately turned around and came to Waxahaehie, where they reported the robbery to the officers.

. Stacy Childress, an accomplice witness, testified for the stafe, in substance, as follows: Pursuant to an agreement with J. W. Cadle, he had arranged to buy the whisky from the negro Alto McGowan. He had called Cadle from Waxahaehie and told him to meet him at the underpass, it being the purpose of the parties to “hold McGowan up” and take the whisky away from him. Cadle was to notify the other participants. Appellant came to the place after he and Cadle had already gotten there. One Billie Batchler, who was a peace officer, was present in a Eord roadster, which was parked up the road. After he (Childress), Cadle, and appellant had held the parties up and had taken $95 off of McGowan, he (Chil-dress) went up the road to where Batchler was and gave him the money. Batchler said: “Let me keep this money. They might catch .you and there might be something noised about it.” Batchler said he could split the money later. Appellant and Batchler then got in appellant’s car and followed Rose, Adams, and McGowan along the highway toward Dallas. He (Childress) and Cadle took the whisky and brought it to town. He got six and one-half gallons of the whisky, which he carried to his father’s house, and Cadle carried the balance away in Batchler’s car.

Appellant testified, in substance, that he had been a peace officer in Ellis county for a number of years; that at the time of the alleged robbery he was not working in that capacity, and held no deputyship of any character; that he was present near the underpass in Batchler’s car when a Ford Coupé approached and stopped for a minute; that the Ford went on down the road; that he was advised that Batchler and the parties present were expecting to capture a load of whisky; that Batchler was a peace officer; that, after the car had gone on down the road, Childress advised him .that the parties said they had not brought the whisky; that the car turned and went back toward Dallas; that he and Batchler got in his Chevrolet roadster and took out after the parties in an effort to catch them, believing that they had whisky in the car.; that they were unable to overtake them ; that they then turned around and drove back to Waxahaehie; that, if Stacy Childress and J. W. Cadle found any whisky on the road that night, he did not know anything about it; that Cadle did not have any pistol or gun on him that he knew of; that his original purpose, in going to the underpass was to take one Reynolds out there; that, after Reynolds started back to town with another man, he had nothing else to do, and remained to watch the officer and Ms associates capture the whisky; that no one delivered any money to Billie Batchler in his presence; that he saw no robbery committed, and participated in none; that he was not a party to a conspiracy to rob the injured party.

Bills of exception Nos. 1 to 6, inclusive, and Nos. 9 and 19, relate to the action of the court in refusing to charge the jury, in effect, that the witnesses McGowan, Adams, and Rose had been impeached, in that they had been convicted for violating the liquor laws, and were shown to be engaged in the whisky business in Dallas. It was shown by the state on direct examination of the witnesses Rose, McGowan, and Adams that they had been convicted for violating the liquor laws. The state also showed that these witnesses were then engaged in the illicit traffic of intoxicating liquor. Appellant excepted to the court's charge, as shown by the bills of exception referred to, for its failure to instruct the jury as follows: “You are instructed that if you find that said J. C. Rose’s testimony has been impeached by proving that he is engaged in a business that is a crime under the laws of Texas, and was so engaged on the day of the matters alleged in the indictment, then it is your province to consider such testimony impeaching or tending to impeach the said Rose, and from it it is your duty to decide whether or not such impeachment, if any, does or does not absolutely disprove or falsify his evidence given on the trial of this cause.”

A similar charge was sought as to each of the witnesses mentioned in the bills of exception. In support of his contention that the charge should have been given appellant cites Elkins v. State, 48 Tex. Cr. R. 205, 87 S. W. 149, 150. In that case the accused offered proof which tended to impeach the prosecuting witness. The court instructed the jury, in substance, that a witness might be impeached by showing that she had made other and different statements out of court, and that such impeaching evidence was to be considered by the jury, for what they might think it worth, for the sole purpose of enabling them to judge of the weight to be given to the testimony of the witness so impeached. The charge was objected to on the ground that it limited the consideration of the impeaching testimony simply to the weight the jury might attach to the evidence of the prosecutrix, and did not •permit the jury to consider such testimony for the purpose, of affecting her credibility. In holding that the charge was too restrictive, this court expressed the opinion that, whenever the testimony of state’s witnesses is attacked by showing contradictory statements, the charge contended for by the accused in Elkins’ Case should be given. In concluding that error was presented, the court, speaking through Judge Davidson, said: “But the charge here given withdraws from the jury that phase of the law which authorized them to consider the impeachment of a witness as affecting her credibility.” The statement in the opinion that the charge contended for should be given in a case where the witnesses for the state had been impeached was not necessary to a disposition of the case. The trial court, having, in Elkins’ Case, undertaken to submit an instruction covering the impeaching testimony, fell into error in advising the jury that it could only be considered as affecting the weight to be given to her testimony. This was manifestly incorrect, as the jury had the right to consider the testimony of the witness as affecting her credibility. The opinion is expressed that Elkins’ Case cannot be taken as authority supporting appellant’s contention. In any event, it is the general rule that, if the impeaching testimony could only be used by the jury to impeach the witness, it is not necessary to charge on the subject at all. Branch’s Annotated Penal Code, § 180; Brown v. State, 24 Tex. Cr. R. 170, 5 S. W. 685; Thompson v. State, 55 Tex. Cr. R. 120, 113 S. W. 536. The impeaching testimony could not have been used by the jury for any other purpose than to have impeached the state’s witnesses.

Bills of exception 7 and 8 recite that appellant objected to the charge of the court for its failure to limit the effect of proof that he had been indicted in Henderson county in 1931 for accepting a bribe. The court qualifies the bill.of exception as follows: “The matters complained of in the above bill of exception were neither objected to by defendant nor was any exception taken in any form to any action of the court in the matter.” An examination of the appellant’s exceptions to the charge of the court fails to disclose any objection to the charge for its failure to limit the testimony in question. No special charge covering the subject appears to have been presented. Article 658, C. C. P., provides that, before the charge is read to the jury, the defendant or .. his counsel shall have a reasonable time to examine the same, and that he shall present his objections thereto in writing, distinctly specifying each ground of objection. Article 666, C. C. P., requires that all objections to the charge, or to the refusal or modification of special charges, shall be made at the time of the trial. The necessity of compliance with the provisions of the statutes mentioned has been often emphasized in the opinions of this court. Bowling v. State, 115 Tex. Cr. R. 4, 27 S.W.(2d) 182.

Bills of exception Nos. 10 to 12, inclu-' give, complain of the action of the trial court in refusing to permit the witness Billie Batch-ler to testify for appellant. In offering the .witness, appellant filed his affidavit in which he stated, in substance, that he was charged in the indictment with J. W. Oadle, Stacy Childress, and Billie Batchler with the offense of the robbery of Alto McGowan; that McGowan and those with him at the time of the alleged offense had failed to identify Batch-l$r; that Stacy Childress, an accomplice witness, was the only party present who had in any way connected Batchler with the commission of the offense; that Childress was a perjurer, and his reputation for truth and veracity was bad; that he had reason to believe, and did believe, that Batchler was indicted for the sole and only purpose of preventing him from using the said Batchler as a witness in his behalf. It appears from the bills of exception that the state did not controvert appellant’s affidavit. The court declined to permit Batchler to testify, and qualified the bills of exception as follows: “The evidence in the case at the time Billie Batchler was offered by defendant as a witness had strongly raised the issue that said Batchler was an accomplice, aside from the fact that he had ■been indicted by the grand jury in connection with the commission of the same offense for which defendant was being tried.”

Under the provisions of article 711, C. C. P., persons charged as principals, or accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another. Fagan v. State, 112 Tex. Cr. R. 107, 14 S.W.(2d) 838. Notwithstanding the provisions of the article referred to, the fact of such indictment would not avail the state in attempting to urge the disqualification of a witness where it is shown by the record that the indictment was obtained for the purpose only of disqualifying such witness, and that there was no evidence warranting the return of said indictment. Fagan v. State, supra; Frazier v. State, 115 Tex. Cr. R. 149, 29 S.W.(2d) 749, 750. In the present instance, the failure to apply for a severance is not explained. Nothing in the present record indicates any bad faith on the part of the state in procuring the indictment against Batchler. The accomplice witness Childress testified on the trial that Batchler was present and participated in the commission of the offense to the extent of receiving the money, and of aiding in driving the injured party and his companions away from the scene of the robbery. Appellant admitted on the witness stand that Batchler was present; and, further, he also testified that he and Batchler followed the injured party for some distance on the highway toward Dallas. We .are constrained to hold that the trial court properly refused to permit the witness to testify.

Bill of exception No. 16 sets forth numerous questions and answers. It appears from the bill that state’s witness Rose, upon cross-examination by appellant, was ashed if he had been in the whisky business in Oklahoma. He replied, without objection, that he had. Appellant’s counsel then asked the witness if he was in the wholesale or retail business. Upon objection by the state, the court rejected, the testimony on the ground that it was immaterial. Again, the court refused to permit the witness to testify how long he was in the business in Oklahoma. The witness was further permitted to testify, in answer to questions propounded by appellant’s counsel, that he was at the time of the trial engaged in the whisky business. As to the length of time he had been so engaged in Texas, the court sustained the district attorney’s objection. The court then permitted appellant’s counsel to elicit from the witness the fact that he was taking orders for whisky from a certain place of business in Dallas. In sustaining the objection to several of the questions propounded, the court stated to counsel, in the presence and hearing of the jury, that he wanted it distinctly understood that counsel was to “stay off of that immaterial stuff from now on.” Counsel replied: “We want our hill to show the remarks of the court.”- Unless this statement of counsel could be considered an objection to the remarks of the court, no objection is embraced in the bill of exception. It is certified in the hill that the remarks were made in an emphatic tone on two separate occasions, and that the manner and tone of the court “was such as if none of the questions asked had anything to do with the case.” Further, it is certified that “the action of the court was said and done” in a manner that was calculated to inform the jury that none of the questions asked had anything to do with the case. The bill recites 'that appellant excepted to the action of the court in sustaining the numerous objections by the state to all the questions asked and in being told to “stay off of such immaterial stuff.”

The opinion is expressed that the-bill of exception is multifarious, and therefore not entitled to consideration. However, if it should be considered, we think that it fails to manifest reversible error. Appellant contends that the remark referred to was within the inhibition of article 707, O. O. P., which provides that, in ruling upon the admissibility of evidence, the judge shall not. discuss or comment upon the weight of the same, or make any remark calculated to convey to the jury his opinion of the case. The opinion is expressed that the remark of the court referred solely to the questions to which the state’s objection had been sustained, and that the jury could not have been impressed with the view that the trial judge was expressing an opinion that the testimony already elicited from the witness, without objection, was immaterial. We find nothing in the remarks constituting a comment on the weight of the evidence already admitted, or its bearing on the case. Nor do we believe the statement of the court was calculated to convey to the jury the trial judge’s opinion of the ease. In McGee v. State, 37 Tex. Cr. R. 668, 40 S. W. 967, it is shown that the accused’s counsel asked a witness a certain question, to which the state objected. In overruling the state’s objection, the court said: “It is not very material, but it may go to the jury.” In holding that the bill of exception relating to the matter failed to present reversible error, this court, speaking through Judge Davidson, said: “The court should refrain from expressing any opinion in regard to- the effect or weight of testimony, in passing upon its admission or rejection, and the statute prohibits such comments; but, under the unbroken line of decisions, in order to require a reversal under such circumstances the action-of the court must be reasonably calculated to operate prejudicially to the accused. If the testimony is immaterial, or slightly material, and could have had no appreciable effect on the verdict of the jury, this court will not reverse when such comments are indulged in by the trial court. In the light of this record and the bill of exceptions, we do not believe it is a question having any weight, or carrying any probative force, whether the organization was or was not secret. But, if the testimony had any bearing, it was so slight that it could not have affected the case, and it may be observed here that the appellant was given the lightest punishment for a violation of the local option law.”.

See, also, Whittington v. State, 118 Tex. Cr. R. 362, 38 S.W.(2d) 814; Gallardo v. State, 101 Tex. Cr. R. 46, 274 S. W. 150; McCoy v. State, 108 Tex. Cr. R. 583, 2 S.W.(2d) 242.

Bill of exception No. 20 shows that the district attorney elicited from state’s witness Rose the fact that he had been convicted three times in Oklahoma for violating the liquor laws, that he had been engaged in the liquor business in Dallas, and had served a term for violating the liquor laws in Texas, and that on another occasion he had been tried in a federal court and acquitted because the evidence against him was insufficient. Appellant sought to elicit from the witness, on cross-examination, that he had been acquitted in the federal court on account of the fact that the search was illegal. The court sustained the state’s objection to the testimony, and appellant offered to introduce in evidence the judgment of the federal court suppressing the testimony. If it' should be - conceded that it was proper for appellant to prove that the witness had been acquitted because of a defective search warrant, we are unable to see how such -fact could have added any material weight to the testimony already introduced touching the conviction of the witness on several occasions for violating the liquor laws. In short, the state had shown that the witness was not only engaged in the whisky business in Texas, but had been so engaged in Oklahoma, and that on several occasions he had been convicted.

It appears from bill of exception No. 18 that state’s witness Childress was asked on cross-examination if he had not been convicted of cattle theft in 1918 and given a suspended sentence. The district attorney objected to the testimony on the ground that the conviction was too remote. It is recited in the bill of exception that Childress admitted on the witness stand that he had given false testimony on an examining trial of thd present ease. It is further recited that appellant had introduced eight witnesses who had known Childress for years, and prior to 1918, and that all of said witnesses testified that his reputation for truth and veracity was bad. It is not shown in the bill of exception that the trial court did not retire the jury in order that he might determine after an investigation, in the absence of the jury, whether under the ascertainable facts the act was too remote. As far as the bill reflects the matter, the trial court might have complied with the rule laid down in Shipp v. State, 104 Tex. Cr. R. 185, 283 S. W. 520. The fact, alone that the witness had given -false testimony after the indictment in the present ease had been returned and that several witnesses testified that his reputation for truth and veracity was bad would not, in our opinion, warrant this court in concluding that the trial court abused the discretion vested in him in determining that the testimony was too remote. Other than the indictment against the witness growing out of the present transaction, there is nothing before this court to show that during the fourteen years after his conviction for cattle theft a charge of any character had been preferred against him. See Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194. In the state of the record, we are unable to say from the bill of exception that the impeaching testimony was not too remote. See Cawthon v. State, 114 Tex. Cr. R. 86, 24 S.W.(2d) 435.

Further, it is observed that article 780, C. C. P., reads as follows: “In any case of suspended sentence, at any time after the expiration of the time assessed as punishment by the jury, the defendant may make his written sworn motion for a new trial' and dismissal of such case, stating therein that since such former trial and conviction he has not been convicted of any felony, which motion shall be heard by the court during the first term time after same is filed: If it appears to the court, upon such hearing, that the defendant has not been convicted of any other felony, the court shall enter an order reciting the fact, and shall grant the defendant a new trial and shall then dismiss said cause. After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into for any purpose except in cases where the defendant has been again indicted for a felony and invokes the benefit of this law.”

Appellant brings -forward several bills of exception in which he complains of the action of the court in not permitting him to propound certain questions to the state’s witnesses relative to their activities in the whisky business. It is observed that the state proved that the witnesses were engaged in the whis-ky business and had been convicted for violations of the liquor laws. This matter was gone into fully by both the state and appellant. If it should be held that the matters complained of in the bills of exception last mentioned reflect error, the opinion is expressed that in the light of the record the errors were harmless.

A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, Presiding Judge.

In. the motion for rehearing, counsel for the appellant stresses the claim that the alleged improper comment of the judge trying the case discloses an imperative necessity for a reversal of the judgment of conviction. Prom the bill of exception, it is shown that, after sustaining the objection of state’s counsel to certain questions propounded by appellant’s counsel to the witness Rose, the judge made the following remark: “You may have your bill and stay off of that immaterial stuff.”

Rose was one of the alleged persons robbed. He was called by the state as its first witness. On direct examination by the state, Rose testified that he was in the business of bootlegging in Dallas county; that he had been engaged in that business for three or four years; that he had been convicted of that offense in Dallas and had served a term in. jail; that he had been convicted in Oklahoma for a like offense; that he did not recall having been convicted of any other felony. Similar testimony was given by the witness on cross-examination, as appears from both the statement of facts and the bill of exception.

On cross-examination, the witness Rose testified that he had formerly lived in Texas, but had gone to Oklahoma when he was a small boy and lived there until he was grown. While there, he had been prosecuted for violating the law against the traffic in intoxicating liquors; that he had been twice convicted when he lived in Oklahoma and once convicted on a plea of guilty in the same state at the time he lived in Dallas, Tex.; that in Dallas he had-*'been convicted of a like offense, paid a fine, and had served a jail sentence. lie said, “I am in the bootlegging business in Dallas at the present time.” He also testified on direct examination that he and his companions, McGowan and Adams, had, upon an agreement with Childress, brought from Dallas on the occasion of i^he alleged robbery five cases of whisky which they had undertaken to deliver for the sum of $90. It was shown by various witnesses that Rose and his companions brought a quantity of whisky to Ellis county on the occasion in question, and that Rose and his companions were dealers in whisky. That that was their occupation, and that they were engaged in it at the time of the transaction -in question, was an uncontroverted fact.

The foregoing testimony of Rose was given in response to questions propounded by appellant’s counsel, without the interposition of any objections by counsel for the state. After such testimony was given, and during the further cross-examination of Rose, certain questions were asked and certain action taken by court and counsel, which appears in the bill of exception as follows:

“Q. You were in that business up there (Oklahoma)? A. Yes, sir.

“Q. Were you taking goods out of Dallas up to Oklahoma ? (Objection by state sustained, exception by defendant.)

“Q. Are you in that business now? A. I am.

“Q. How long have you been in the bootlegging business in Texas? (Objection by state sustained, exception by defendant.)

“Q. You 'used that place (Yarbrough’s store) to carry on your business and take 6r-ders.? A. That is right.

“Q. Did you keep liquor in that store? (Objection by state sustained, exception by defendant.)

“Q. Where did you keep your wares? (Objection by state sustained, exception by defendant.)

“Q. You have a big business? A. Not.such a big business.

“Q. Enough to make a living? (Objection by state sustained, exception by defendant.)

“Q. When you made this trade, where did you go to get the whisky? (Objection by state sustained, exception by the defendant.)

“Q. Was the whisky there at your home? (Objection by state sustained, exception by defendant.)

“Q. Where were you when you started with that whisky in that car? (Objection by state sustained, exception by the defendant.)”

Counsel for the appellant then remarked: “We think it is right and proper to go into every detail with reference to this whisky, because the matter has been introduced by the State; he testified he came here to deliver it, and we have a right to ask where he got it”

The court then said: “You may have your bill and stay off of that immaterial stuff.”

We are unable to agree with the suggestion of the appellant that the words used by the court, namely, “and stay off of that immaterial stuff,” were imputable to all of the cross-examination' of the witness Rose. On the contrary, the application of the remarks could be'justly made alone to the questions to which the objections were addressed and sustained as above set out. Many decisions are cited by the appellant as bearing upon his contention that the remark constituted a prohibited comment upon the weight of the evidence. In article 707, O. O. P. 1925, it is declared: “In ruling upon the admissibility of evidence, the judge, shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceedings previous to the return of a' verdict, make any remark calculated to convey to the jury his opinion of the case.”

On many occasions the court has been called upon to determine whether under a given state of facts there was a violation of the statutory rule announced and whether the remarks, though improper, were harmful.

In the case of English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632, 635, in which there were remarks resulting in a reversal, the following statement is made: “It is not every comment, however, that requires reversal, for the reason that all comments are not harmful, and the question whether the "judgment is to- be reversed is determined, not upon the language used in making the comment, or the fact that the comment is made, but upon the consequences which probably result therefrom.”

See, also, McCoy v. State, 108 Tex. Cr. R. 583, 2 S.W.(2d) 242; Rodriguez v. State, 23 Tex. Cr. App. 503, 5 S. W. 255; Clemmons v. State, 30 Tex. Cr. R. 279, 45 S. W. 911, 73 Am. St. Rep. 923. See, also, Ahlberg v. State, 88 Tex. Cr. R. 173, 225 S. W. 253; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595.

The cases cited by the appellant have been carefully examined. The case of Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 3 A. L. R. 1096, is stressed by the appellant as supporting his contention. The comment of the court had direct application to the evidence that was admitted before the jury. The vice in it was that it went to the jury with the opinion of the court that it was of little value. The court stated that it was a direct comment upon the weight of- the evidence, calculated to convey to the jury the opinion of the court as to the merits of the case. . .

In the present matter, the court having sustained the objections to the question propounded by appellant’s counsel, as shown by the bill, the jurors were not aware of the answer expected, and therefore could not have been influenced by a comment of the judge upon the testimony.

In the case of Rodriguez v. State, 23 Tex. App. 503, 5 S. W. 255, 256, it was said: “The remarks of the judge objected to were made concerning testimony which was rejected when offered, and, this testimony not being before the jury for their consideration, his remarks could have had no influence upon their minds, as we can perceive.”

It is to be observed that in each of these questions the objection was sustained. The bill fails to state what answers were expected from the witness and what objections were made by the state. That a bill of exception so formed presents no matter demanding consideration -is established by almost innumerable precedents. See Tex. Jur. vol. 4, p. 94, § 58, also p. 41; C. C. P. art. 667, and cases collated in Vernon’s Ann. Tex. C. C. P. vol. 2, p. 355, note 16.

The cross-examination was manifestly for the purpose of showing that the witness Rose, by reason of the nefarious business in which he was engaged and the fact, that he was a lawbreaker and had been often ’ convicted of offenses against the liquor law, was unworthy of belief, and that his testimony given before the jury should not be accepted as true. It was made clear, both from the witness Rose and other witnesses for the state, and from the cross-examination of Rose by the appellant, that he was a confirmed criminal, and had long been engaged in and often convicted for violating the law. ■ We are not prepared to say that in making the ruling in question the court abused his judicial discretion. If the remarks in any sense offended against the statutory injunction embraced in article 707, supra, it could not, without doing violence to the statute mentioned as it has been frequently interpreted, be regarded as justifying a reversal of the judgment. •

In bill of exception No. 10, it appears that the appellant offered the testimony of the witness Billie Batchler, who was under indictment for the same offense as the appellant. Because of the indictment, the court refused to receive the testimony. Appellant took a bill of exception in which it is stated that he had reason to believe, and did believe, that the indictment against him was returned for the sole purpose of preventing the appellant and J. W. Gadle -from using Batchler as a witness in their behalf. The motion to permit Batchler to testify is verified by the appellant. Without any contradiction of the affidavit of the appellant, the court declined to hear the testimony of Batchler. In qualifying the bill to the overruling of the motion, the court states: “The evidence in the case at the time Billie Batchler was offered by defendant as a witness had strongly raised the issue that said Batehler was an accomplice aside from the fact that he had been indicted by the grand jury for connection with the commission of the same offense for which defendant was being tried.”

To this qualification there was no exception.

In bill No. 11 it appears that in the motion for new trial is presented the same subject that was embraced in bill No. 10. Batehler’s testimony was again rejected upon the ground of his disqualification. Attached to the bill is a statement of the evidence which Bátchler would have given. It covers a number of pages. However, a recital of it in detail is not practicable.

According to Batchler’s statement, he went upon the invitation of Cadle to the underpass where the offense is charged to have been committed, and, while there, he saw and had some association with Childress, Everett, and Cadle. After remaining there for some time, they returned to his home. While there, parties came in a car. The witness described their movements, including the statement that the parties had an interview with Chil-dress. Batehler denied that Childress gave him any money. He said he knew that there was no hijacking or robbery done, and that “we are absolutely innocent of the charges brought against us.” “I know, and so state upon oath, that no one was hijacked or robbed near the underpass on the date or night herein stated, while Jim Everett, J. W. Cadle and I were together, as herein shown.” The witness had been a peace officer for nine years, and bore a good reputation as a peaceable, quiet, and law-abiding citizen, and at the time of his indictment was a deputy sheriff of Ellis county and city marshal of the town of Farris, Tex.; that on the 5th of February Jim Everett, Cadle, and Childress were indicted, and the witness Batehler was not indicted until the 20th of February. Everett’s trial was set for the 25th of February.

This court has many times declared in substance that a witness cannot, by the fraudulent act of the adversary, be disqualified for the purpose of preventing his testimony coming before the jury. See Doughty v. State, 18 Tex. App. 179, 51 Am. Rep. 303; Cundiff v. State, 86 Tex. Cr. R. 476, 218 S. W. 771; Ice v. State, 84 Tex. Cr. R. 513, 208 S. W. 343. To obtain the benefit of the rule, there must be evidence supporting the alleged fraud. In the present case, the regularity of the grand jury which found the indictment against Batehler was not attacked; nor does it appear that there was evidence of vice on the face of the indictment. The apparently sufficient indictment carried with it the pre- • sumption of regularity. When Batehler was offered as a witness and his indictment for the same offense appeared, his disqualification as a witness for the appellant resulted from the statute, article 711, C. C. P., also P. C., art. 82. There is no evidence to support the contention that the grand jury acted corruptly or without'adequate testimony. To avoid the effect of the indictment disqualifying the witness and to overcome the presumption of regularity in finding the indictment, it was essential that the appellant’s attack upon the indictment should be supported by evidence. The only evidence apparently presented was that which came in the motion for new trial, to which reference has been made above, and that consists of the statement of Batehler under .oath, denying his guilt and the guilt of his alleged confederates, in which statement his association with the parties charged with the commission of the offense, about the time of its alleged commission, is conceded and vouched for by his testimony.

Touching the other bills of exception, it is thought that the proper disposition of them was made in the original opinion.

For the reasons stated above, the motion for rehearing is overruled.


source: Caselaw Access Project

author: LATTIMORE, Judge. HAWKINS, Judge. MOBROW, Presiding Judge

license: Public Domain

text:
    CADLE v. STATE.
    No. 14929.
    Court of Criminal Appeals of Texas.
    May 11, 1932.
    Rehearing Denied Feb. 15, 1933.

      A. R. Stout, of Ennis, and Tom Whipple, J ohn Hatter, and Will Hancock, all of Waxa-hachie, for appellant.
    Archie D. Gray, Or. Dist. Atty., of Waxa-hachie, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for robbery; punishment five years in the penitentiary.

This is a companion case to Jim Everett v. State (Tex. Cr. App.) 57 S.W.(2d) 140, opinion handed down March 30, 1932, and Batchelor v. State (Tex. Cr. App.) 50 S.W.(2d) 1099. The facts from the state’s standpoint are in the main very much like those in the case of Everett v. State, referred to. We see no need for a recital of the facts testified to by the state witnesses further than to say that same show that on the night of January 2S, 1931, this appellant and one Jim Everett came upon a party of men and commanded them to “Stick ’em up.” The testimony shows that one of the men had and exhibited a pistol. The parties so ordered held up their hands, and while in this position they were searched by a man implicated in the supposed holdup, who after-wards turned state’s evidence and testified for the state, who got from one of the men a small amount of money and from another one a larger sum.

Appellant has brought forward twenty-two bills of exception, each of which has been examined in the light of the able brief and citation of numerous authorities by appellant’s attorneys. Reviewing the complaints made as presented and argued in appellant’s brief, the first matter discussed is the supposed error of the charge, raised by exceptions thereto which seem unintelligible, but refer to thei failure of the court to tell the jury that, if appellant was present by invitation of the officer, etc. We have examined carefully this first exception, and find nothing tangible in it.

The second exception to the charge was for its failure to instruct the jury that, if appellant was present at the robbery, and money was taken from McGowan by Stacey Childress “without his knowledge and consent he would not be guilty as charged in the indictment.” We have tried to bring ourselves to understand this exception without success. We cannot tell whether the phrase “without his knowledge and consent” applies to appellant Cadle or witness McGowan. However, we are of opinion that, if it referred to appellant Cadle, the exception would be unavailing because covered by the main charge which told the jury that they could not convict appellant, unless they found and believed from the 'evidence beyond a reasonable doubt that he agreed to the commission of the offense committed by Childress (the party making the search). We find nothing supporting the theory that appellant was holding the pistol on the parties for the purpose of letting Childress search them for guns, and nothing else. The evidence seems to plainly show that, pursuant to an agreement entered into between appellant and others to hold up said parties, appellant and Everett held them up, and Childress went through their clothes and got a small amount of money from one of the men, and $95 in money from another. Appellant took the stand as a witness in his own behalf, and admitted being at the place in question for the purpose, as he claimed, of helping others detect ahd catch parties bringing liquor down the road, but he emphatically denied that he and Everett held anybody up, or that Childress went through their clothes and took anything from them in his presence, or by his agreement or connivance. In this connection appellant argues the error of the refusal of his special charges. We see no necessity for discussing same at any length. There was no issue made as to the •legal right of an officer to deputize a citizen to assist him in making an arrest of parties for violations of the law. In another one of said special charges appellant sought to have the jury told that he could not. introduce in his behalf certain parties who were jointly indicted with him for complicity in this offense. This was correctly refused as decided in O’Neal v. State, 109 Tex. Cr. R. 486, 5 S.W. (2d) 521. Nor do we see any necessity for giving special charge No. 1, which was in substance that, if the jury believed that this appellant, acting with his codefendants, did not intend to take from Rose, McGowan, and Adams money or things of value, at the time and place mentioned, and that they caused Childress to search the said parties for guns only, and that Childress, unknown to them, took from McGowan money without the knowledge of appellant, they should acquit. Appellant has gone to great pains in collating the authorities and making an extended argument in support of the giving of said special charge, but we confess our inability to see the application of the authorities or correctness of the argument. Childress testified that he had stopped the parties who were robbed, on the road, and that Everett and appellant came up, appellant having a pistol and Everett a flash-light, and that they made the parties hold their hands up, and that he (Childress) went through their pockets and got money off <5f McGowan and gave it to Batchler. On cross-examination he said that he was not certain whether Everett and appellant knew that he got any money out of McGowan’s pocket, but affirmed that they knew that he got 55 cents out of Rose’s pocket, and later dropped it back in his pocket and told him that he was a cheap s-- of a b-■, or something like that. We fail to find where he said that there was any understanding or belief on the part of appellant that he was only searching the parties for guns.

Appellant’s second and third propositions relate to statements of the prosecuting attorney, made in the presence of the jury as reflected by bills of exception Nos. 9, 12, and 13. We regard the statements made by the prosecuting attorney as uncalled for and unnecessary, and as being of a character that ought to be avoided, but same put before the jury no new evidence, nor do we believe them capable of influencing or affecting the jury’s consideration of the question of the guilt of the accused. The jury rendered a verdict giving appellant the lowest penalty. In bill of exception No. 9 it is set up that, while appellant’s attorneys were cross-examining a state witness about some conversation between said witness and another party about a still that .the other party had been running for witness, the state’s attorney said in the presence and hearing of the jury: “That is all a bunch of bosh,” and later' again said, “It is' all bosh and slush,” and again, while appellant's attorneys were taking their bills, the state’s attorney said, “Take thirty bills.” The matter being inquired about was apparently very remote to the question of the robbery. Bill of exception No. 12 shows that during the cross-examination of the same witness he was shown a check relating to the purchase of some whisky, involving an illegal transaction apparently, not shedding light on the question of the robbery, and the state’s attorney objected, saying to the court: “We are not trying him for this check, and they are trying to get all of this slush and slime before the jury, and that is not fair.” Erom bill of exception No. 13 it appears 'that, while the same witness was being cross-examined, he -was shown a check, and the state's attorney said in the presence and hearing of the jury: “Yes. and I have got some of your clients’ signatures in my office.” It would seem -unnecessary to admonish prosecuting attorneys not to indulge in conduct of the kind evidenced by these bills of exception. In some cases same might require reversal, but in the instant ease, and in view of the fact that the lowest penalty was given, and that the matter under discussion, and about which the remarks were made, appears of so little materiality, we would not think the case should be reversed for the making of such statements.

Appellant complains of proof by the state of the acts and declarations of his alleged coconspirator Childress done and said after the alleged robbery. While Childress was on the witness stand, he was vigorously cross-examined by appellant’s attorneys, and admitted that he had made various and sundry statements at other times and places contradictory of those made by him while on the witness stand. The declarations testified to as being made by said witness after the termination of the conspiracy were declarations in consonance with and supporting those made by him on his direct examination as a witness in behalf of the state. Many authorities will be found cited in sections 181, 182 of Mr. Branch’s Annotated P. C., supporting the proposition that, where a state witness is attempted to be impeached by showing that he has made statements out of court different from and contradictory to his testimony given on the trial, proof may be admitted showing that he had made other statements similar to those given while on the witness stand. As illustrating what we have said, we find in the cross-examination of state witness Childress that he was asked about a statement made to the county attorney the morning after the holdup, and if he did not tell the county attorney that there was no hijacking out there at all. A little later he was asked if he did not make certain statements to the officers and if he was not under oath when he made the statements to the officers, and if it was not a fact he did not 'tell the whole truth when he made the statements. He was further asked if he did not testify certain things on the ha-beas corpus trial of this appellant under oath, and if he did not make certain statements which were read to him which were entirely at variance with statements made while on the witness stand. This furnished a predicate for the admission of testimony as to the statements of the witness which were in conso- . nance with the statements made by him as testified to by witnesses introduced by the state. It is also complained that, the statei having drawn out of appellant while on the witness stand admissions that he had been indicted for other offenses, it was the duty of the court to instruct the jury they could not consider such testimony for other than impeachment purposes. We find no special charge in the record requesting such instruction, and the only thing in the exceptions taken to the charge of the court is that it is stated: “Defendant specially excepts to said charge because same nowhere explained to the jury the purposes for which the impeaching testimony is offered.” In this connection the court gave special charge No. 2 which instructed the jury that the impeaching testimony was admitted as to the witnesses Rose, McGowan, Adams, and Noble for the sole and only purpose of aiding them in passing on the credibility of said witnesses, and for no other purpose. The exception quoted is so indefinite as to not call the attention of the trial judge to what 'testimony it referred. We cannot tell from an inspection of the exception to what "testimony reference was had. The testimony apparently referred to as obtained from appellant was the fact that he had been indicted for other offenses which consisted, as far as we understand the record, only of his admission that he -had been charged with transporting a still over in Freestone county, but there is no showing when this took place, or whether the charge was in the federal court, or whether it was a felony or otherwise. Appellant further testified that no complaint or indictment had been filed against him recently. With reference to the matter over in Freestone county, appellant testified on redirect examination that he paid a fine for having a pistol in his car, and that was about all there was to it.

We think it not necessary to enter into any extended discussion of the right of the court to direct the order of trial as between appellant and -his codefendant Batchler. Appellant filed an application for severance, and Batch-ler made a counter affidavit refusing to agree to be tried first, and the court correctly directed that appellant-go to trial. It is admitted in this connection that Batchler has since been tried and convicted.

Complaint of the rejection of testimony sought to be elicited from the state witness Stacey Childress on cross-examination by appellant, if he was not engaged in the business of bootlegging, jseems within the rule laid down that a witness cannot be impeached by proof of particular transactions. There was no effort made to show that these matters had ever been made the subject of an indictment or arrest for any purpose.

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

On Motion for Rehearing.

HAWKINS, Judge.

Our discussion of the questions urged in the motion for rehearing must be in the light of the facts as understood from the record. We condense them as much as possible. They are much the same as found in the companion cases of Batchelor v. State, reported in 50 S. W.(2d) 1099, and Everett v. State (Tex. Cr. App.) 57 S.W.(2d) 140, in which motion for rehearing is overruled this date. The state’s evidence shows the following: Childress went from Waxahachie to Dallas, and under the ‘name of Bill Green made arrangements with parties there to deliver to him five cases of whisky at an underpass on the interurban railroad in Ellis county. Before going to Dallas, he told Cadle of his purpose, and said, if successful, he would telephone Cadle, which he did, and expected Cadle to have a deputy sheriff with him. Upon Childress’ return from Dallas, he was met at the interurban station by Cadle, who had a car belonging to one Williams. ’Childress got in the Williams car and Cadle got in a car belonging to Batch-elor, a deputy sheriff. The three of them went to this underpass, but Cadle and Batch-elor stopped their car some two hundred yards south of the underpass toward Waxa-.hachie; before the parties from Dallas arrived with the whisky, Everett, accompanied by one Reynolds, arrived at the underpass in ; Everett’s car, and Reynolds reported that Wil-¡liains had sent for his car. It was turned ‘.over to Reynolds, -who drove it back to Waxa-■hachie. The Everett car was parked where .Childress had formerly parked the Williams car. Everett then went down the road to the car in which Batchelor and Cadle were, Child-¡ress alone remaining at the Everett car to give the signal which had been theretofore agreed upon when the parties appeared from ! Dallas with the whisky. About 8:30 or 9 o’clock at night J. C. Rose, Alto McGowan, and Spencer Adams appeared in a car coming from Dallas with the whisky which Childress had arranged for. Upon the agreed signal ’being given by Childress, the car from Dallas was stopped. McGowan got out and was told by Childress to drive on down the road a piece and turn around and come back. When the- three parties from Dallas drove on they saw the Batchelor car, and, being suspicious, did not turn at that time, but went on down the road some distance toward Waxahachie, unloaded the whisky at the side of the road, turned and came back, again passing the Batchelor ear, and stopped at the car where Childress was waiting. Upon being asked then about the whisky, they reported to Child-ress that they did not have it. About that time Everett and Cadle came up, Cadle with a pistol, and Everett with a flash-light. Rose, Adams, and McGowan were made to put up their hands, and Childress searched their pockets while Cadle held the pistol on them. No money was found on Adams. Fifty-five cents was taken from Rose, and he was told by Childress that he was a “cheap s-of a b-,” and the 55 cents given back to him. From McGowan Childress took $95 in money, after which the three parties. were told to “beat it,” and they started in their car back toward Dallas. They were followed some distance by Everett and Batchelor. Childress says, after getting the money from McGowan, he went back to Batchelor’s car and gave the money to Batchelor, who said he would keep it and they would “split it” later. No witness claims that Batchelor was at the immediate place of the search and robbery. It seems clear from the state’s testimony that the primary purpose of Childress and his companions was to rob McGowan, Rose, and Adams of the whisky. According to Childress’ testimony, after Batchelor and Everett pursued the three parties toward Dallas, he and Cadle went back down the road toward Waxahachie, discovered the whisky at the side of the road, and placed it in Batchelor’s car and returned to Waxahachie with it. Childress testified to where he put that part of the whisky kept by him, and that he told the officers where it was. Later in the night Rose, Adams, and McGowan returned to Waxahachie and reported to the officers that they had been robbed by Bill Green and other parties. A man by the name of Bill Green was taken by the officers to the county attorney’s office at the courthouse, and all three of the men from Dallas said he was not the man who had arranged for the whisky and later, with the others, robbed McGowan. The officers then went to the home of Childress and brought him to the county attorney’s office, and he was immediately identified by all three of the parties as the man who had searched them, and who had given the name of Bill Green at the time he made arrangements to have the whisky delivered. Appellant’s version of the transaction will be given later in connection with some of the complaints urged by him in his motion for rehearing.

Appellant complains that we did not discuss his bills of exception Nos. 15, 16, and 17. While not designated by number, they were discussed in a general way in our opinion on original submission. The record shows that the witness Walters was called by the state in rebuttal. Bill No. 15 complains that said witness was permitted to testify that, after Childress made bond and was released from jail, he came to witness’ place of business and told witness about the matter of arranging for the delivery of the whisky and about Everett and Cadle using a gun and flash-light and about taking $95 from McGowan. The statement made by Childress to Walters was consistent with the former’s testimony given on the trial. The principal objection urged to Walters' testimony was that the state was relying on a conspiracy to which Childress and his companions were parties, and that the declaration made to Walters was in the absence of appellant, and after the consummation of the conspiracy, and that such declaration was therefore inadmissible. Appellant cites many authorities supporting the general rule that proof of acts and declarations of coconspirators done or made in the absence of the party on trial after the commission of the offense, and after the conspiracy is completed, are not admissible against accused. The rule will be found stated in section 695, Branch’s Ann. Tex. P. C., at page 354. There can be no difference of opinion between counsel for appellant and this court with reference to the soundness of the rule stated; therefore it is not necessary to discuss or cite the cases referred to. As we understand the record, Walters’ testimony was not offered by the state for the purpose of establishing appellant’s guilt, nor as tending to establish a conspiracy. Upon cross-examination of Childress, who had turned state’s evidence, he admitted that the next morning after the holdup he had told the county attorney about getting the whisky, but denied that there was any “hijacking" incident to the transaction. Pie also testified that this part of his statement to the county attorney was not true. Childress further admitted upon cross-examination that upon habeas corpus trial of appellant witness had denied that any robbery occurred, and denied that appellant had used a gun and Everett a flash-light. He also admitted that upon this habeas corpus trial he was asked .the question: “There was not any hijacking out there while you were there?” to which the witness admitted that he had answered, “Not while I was there.” As well established as the rule regarding declarations of conspirators heretofore mentioned is another rule of evidence that, where a witness is attempted to be impeached by showing that he had made statements different from and contradictory to his testimony delivered on the trial, it is not error to permit the witness to be supported by showing that shortly after the transaction he made statements consistent with his testimony delivered on the trial. It was the application of the latter rule this court had in mind in considering bill of exception 15 at the time our original opinion was prepared. As we understand the record, the evidence of Walters was admissible. Many authorities to support the proposition will be found collated in Branch’s Ann. Tex. p. C. § 181, at page 110. If appellant was fearful that the testimony of Walters might be appropriated by the jury for an improper purpose, doubtless if the court’s attention had been pertinently called thereto he would have given a charge guarding against any such contingency. We find the following exception to the court’s charge: “ * * * Because the same nowhere explains to the jury purposes for which impeaching testimony is offered.”

Said exception does not make any reference to supporting testimony of a witness sought to be impeached. We also find that the court gave special -charge No. 2 requested by appellant regarding evidence which had been offered for 'the purpose of impeaching the-state’s witnesses Rose, McGowan, Adams, and Noble. The trial court was justified in the conclusion that this charge which he gave was intended to correct what was regarded by appellant as an omission from the charge pointed out in the exception above quoted. Under the circumstances, we must adhere to the announcement that under the record bill of exception 15 presents no error.

Bill of exception 16 complains of the admission of the testimony of the witness Winterrowd. This witness was not used by the state in developing its case in chief, but was called in rebuttal. Winterrowd was a deputy sheriff. The bill shows that the witness testified that between 12 and 1 o’clock on the night of the alleged robbery he was called to a garage in Waxahackie and there saw Rose, Adams, and McGowan; that they told him three men, one of them being Bill Green, had “hijacked” them; that Green was the only one whose name they knew, but they could identify the others if they saw them; that the witness went to the house of Bill Green and brought him down to the county attorney’s office at the courthouse where Rose, Adams, and McGowan were, and when they saw Green they said he was not the man. Winterrowd said that a night policeman then spoke up and said he bet that the party they wanted was Childress; that witness then went to Childress’ house, and brought him down to the county attorney’s office, and that immediately upon' his appearance the three men identified him as the man called Green and as the one who had searched them. Win-terrowd also testified that, when he went to Childress’ home, and directed Childress to get up and put on his clothes, Childress said, “Wha’E’s the matter, somebody hijacked?” He also testified that the next day he talked to Childress at the jail, and Childress told'him that he would take him up on the side of the road where the whisky was set out; that he did go up there with Childress and saw a place where there were tracks going from the road over into a muddy ditch, and that there were prints of boxes in the mud; that he then came back to town and found some whisky at a place where Childress said he had put it. Appellant objected to all of this testimony as being hearsay, immaterial, irrelevant, and as an effort to holster the State’s own witness by hearsay testimony, and as evidence of statements made by Childress after the consummation of the conspiracy claimed by the state to have existed. There is no rule better known or which this court is oftener called upon to apply than that a bill of exception is too general to be considered if it includes objections to a number of statements or things set out in the bill, some of which are admissible, and there is nothing in the objection urged to directly challenge or single out the objectionable evidence. The rule will be found stated in section 211, c. 135, Branch’s Ann. Tex. P. C., with many authorities collated in support thereof. Eater cases are Dixon v. State, 91 Tex. Cr. R. 217, 238 S. W. 227; Tracy v. State, 111 Tex. Cr. R. 160, 12 S.W. (2d) 205. Adverting to the recitals in bill Ño. 16, the officer unquestionably had a right to testify that he brought Green to the county attorney’s office, and that he also brought Childress to the county attorney’s office. If the bill had shown a specific objection against Winterrowd undertaking to relate what Bose, Adams, and McGowan had said to him when he found them at the garage, it doubtless would have been excluded by the court. Likewise the statement made by Childress to the witness when he first saw Childress at his home, the question there asked by Childress, being: “What’s the matter, somebody hijacked?” This matter was held improperly admitted in Batchelor’s Case, supra, and would be so held in this case if objection to it had been singled out and segregated from other matters which were admissible. If it should be conceded that the testimony of Winterrowd as to the failure of Bose, Adams, and McGowan to identify the true Green as the party who had aided in robbing them, and the identification of Childress as one of the parties, it could not be held harmful, if properly presented, because the same evidence went into the record without objection from Adams, Bose, McGowan, Childress, and Green. It was also admissible for the officer to tes¡-tify that he went with Childress to a place on the side of the road where Childress said in his testimony the whisky had been set out, and that at the place pointed out by Childress witness saw tracks going from the road over into the ditch and the prints of boxes there in the mud; that in a place pointed out to him by Childress he found certain whisky; Childress having theretofore testified as to the whereabouts of the whisky in question. Marta v. State, 81 Tex. Cr. R. 135, 193 S. W. 323; Huey v. State, 81 Tex. Cr. R. 554, 197 S. W. 202; Willman v. State, 92 Tex. Cr. R. 77, 242 S. W. 746. Of course, it was improper for Winterrowd to testify what Childress told him in regard to the matters referred to, and, if the particular things Winterrowd said had been told him by Childress had been properly segregated in an exception, then we would have a question similar to that discussed in Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739. As the matter is presented here, we hold that bill of exception No. 16 is too general to receive consideration.

It is not necessary to discuss in detail bill of exception No. 17. It presents complaint of the testimony of Burrow, another officer who was called b‘y the state in rebuttal. He was with Winterrowd and Childress at the time they went tp the place near the underpass where prints of boxes were found on the ground, and also where certain whisky was recovered that was pointed out by Child-ress. What has been said in regard to bill of exception 16 in this particular applies to bill No. 17.

By the third exception to the charge appellant directed the attention of the court to the fact that he desired an instruction which was not contained in the charge, to the effect that, if appellant was present when money was taken from McGowan by Child-ress, and it was taken without the knowledge or consent of appellant, he would not be guilty. We are of opinion such an instruction under the facts would not have contained a correct principle of law. The state’s testimony presented the theory that appellant was a party to a conspiracy to commit the offense of robbery. If the jury believed that Childress, appellant, and others had conspired to rob McGowan and others of whisky, appellant would not be free from guilt if in fact his coprincipal Childress robbed McGowan of money. Under such circumstances, appellant would be responsible for the acts of his coprincipals. We do not discuss this question at length. The principle is well-established and was considered in Shelburne v. State, 111 Tex. Cr. R. 182, 11 S.W.(2d) 519, in which a number of authorities will be found cited.

The court charged the jury as follows: “All persons are said to be principals who are guilty of acting together in the commission of án offense; and when an offense is actually committed by one or more persons, but others are present and knowing the unlawful intent of the person or persons actually committing the offense, aid by acts or encourage by words or gestures those actually engaged in committing the unlawful act, become principal offenders, and may be indicted and prosecuted as such. Any person who aids, advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal, whether he aids in the unlawful act or not. You are instructed that the mere presence of the defendant at the time and place of the commission of the offense, if he was present, is not sufficient to show that he was a principal offender, but the evidence must go further and show that the defendant either agreed to the commission of the offense, or aided by acts or encouraged by words or gestures Stacey Childress, Jim Ever-et and Billy Batchelor, or either of them, in the commission of the offense, if any; and unless you find and believe from the evidence, beyond a reasonable doubt, that the defendant agreed to the commission of the offense, if any, committed by said Childress, Everet and Batchelor, or either of them, or aided by acts or encouraged by words and gestures. the said Childress, Everet and Batchelor, or either of them, in the commission of the offense charged, then you will find the defendant J. W. Cadle not guilty, even though you may believe that Stacey Childress, Jim Everet or Billy Batchelor, or either of them, committed the offense charged.”

Appellant claims that he was not a party to a conspiracy to rob the men from Dallas, but that his part in the transaction was because of a willingness to aid officers in apprehending violators of the law; that he did not consent to, acquiesce in, or know of, the taking of money from the Dallas parties, and, if any robbery occurred, he was not present and had no knowledge of it. He complains that the above charge given by the court does not sufficiently present his defense. Appellant appears to have undertaken to call the court’s attention to the matter by his first exception to the court’s charge, which is as follows: “Defendant excepts to said charge because it does not give nor instruct the jury that if they find from the evidence that the defendant J. W. Oadle was present at the time of the alleged offense that he was there by invitation of W. W. Batchelor, Jr., a Deputy Sheriff, for the purpose of assisting him in enforcing the law, and that as such he was for that purpose only authorized to act with said officer in arresting persons found with intoxicating liquor in Ellis County.”

It is evident that the exception is not clear, and that the objection was not specific, as required by article 658, C. C. P. The exception, however, in connection with requested charges 1 and 5, which were by the court refused, may have been sufficient to call the court’s attention to the matter sought to be submitted. By special charge No. 1 appellant desired the court to instruct the jury that, if. appellant, acting with Batchelor, Evei'ett, and Childress, did not intend to take money or other things of value from the Dallas parties, and caused Childress to search said parties “for guns only,” and not for money or property, and 'that Childress, unknown to appellant, took from McGowan the $95 in question without the knowledge of appellant, they should acquit him. Special charge No. 5 would have had the court tell the jury that an officer had the right to deputize a citizen to assist in making an arrest, and, if they believed Batchelor'was a deputy sheriff and had requested appellant to assist him to arrest parties who were expected to bring intoxicating liquor into Ellis county, then the jury was instructed that appellant had a right to assist Batchelor in using all lawful means to make the arrest of parties so violating the liquor law. These two special charges may be considered together, and whether or not their refusal was such error as calls for a reversal depends upon the evidence found in the record. The only mention we find in the evidence with reference to a seai’ch for a gun is in Childress’ testimony.. He testified that all of them had made it up to take the whisky from Rose and the other parties, and that they were going to make a raid and get the whisky; that, if the whisky was taken, witness knew he was to get about seven gallons of it; that at the time he made the arrangements with the parties in Dallas to bring the whisky to the underpass he did not intend to pay for it, and made the promise to them for the purpose of getting them to bring the whisky down; that it was the understanding of the parties acting with witness that they would get the whisky and that witness would get his part of it; that witness was not expecting to “hijack” anybody out of any money; that they were to arrest those fellows, and witness was to take a part of the whisky and let the sheriff’s office do whatever they wanted to with the rest of it; that, when witness got his hand in McGowan’s pocket and found the money, he just took it; that he thought the others were going to arrest them; that, when witness, searched them, he was not looking for money, but was looking for a gun. It is xoerfectly clear from the testimony that Childress never communicated with Batchelor regarding the venture, but that he talked to appellant beforehand about it, and that appellant was the man who took the matter up with Batch-elor. Appellant claims, that he agreed to assist Batchelor in arresting the parties, provided the parties would not be sent to the penitentiary. If he had gone further in his testimony and testified that, at the time the money was taken frbm McGowan by, Chil-dress, he (appellant) was not a party to an agreement to forcibly take whisky from the Dallas parties, and had no knowledge that Childress intended to or did take money from either of them, and that he held a gun on the parties, intending to arrest them, and that they were searched for weapons, in connection with such arrest, the issue sought to be presented by the special charges would have been pertinently before the court for submission. It is clear that any arrest or pretended arrest as mentioned by Childress in his testimony was a subterfuge; that the primary purpose on the part of appellant and his companions was to forcibly take from the Dallas parties the whisky which they were to deliver at the underpass. :

We are of opinion the issues sought to be presented by the refused charges find no basis in the state’s evidence. Are they raised by appellant’s evidence? His testimony, in substance, is as follows: According to his story, he had theretofore aided the officers in apprehending bootleggers and in capturing bootleg whisky. He admits that Childress had told him of his purpose in going to Dallas to induce parties to deliver whisky that might be taken; and that appellant mentioned the matter to Officer Batchelor; that he went to the place in Batchelor’s car, which was stopped some two hundred yards south of the underpass where they could see the tail-light of Childress’ car; that, after Everett appeared on the scene, appellant, Everett, and Batchelor remained in Batchelor’s car. When the parties appeared from Dallas and the light signal was flashed as had been agreed upon, the Dallas car stopped for a moment by the side of Childress’ car and then proceeded south, passed the Batchelor car, and went on toward Waxahaehie; that Batchelor then drove his car up to where Childress was, and Childress reported that the parties said they had the whisky, and that he had told them to turn around and come back and unload it; that Batchelor, appellant, and Everett drove down the road towards Waxahaehie, flashing their lights at every car they met; that they drove south until they x>assed Sterret, when they met a ear which answered their signal, but did not stop, and it went on north towards the underpass; that they then drove back and asked Childress what those fellows said when they stopped, and Childress reported that they claimed not to have the whisky and had gone back towards Dallas; that Batchelor then got in Everett’s ear, and Everett and Batchelor followed after the parties toward Dallas. Appellant further testified that he and Chil-dress then got in the Batchelor car and drove back down the road to see if they could find the whisky arid found it by the side of the road; that Childress suggested putting it in Batchelor’s car, but that appellant would not permit it tó be done in the absence of Batch-elor ; that appellant then drove Childress near his home and put him out; that Chil-dress at the time said he would beat the bootleggers back to where the whisky was; that later on appellant met Batchelor and Everett, who reported that they had not caught the parties and did not know the whisky had been found by appellant and Childress. Appellant denied specifically being present at any time when the Dallas parties were “held up” and searched, denied holding a pistol on them, and denied that Everett held a flashlight on them. It is apparent that appellant by his testimony sought to leave the impression on the jury that no robbery or hold up of the Dallas parties occurred, or, if so, that neither he, Everett, nor Batchelor were present when it occurred, and knew nothing about it; and, further, if the whisky was taken away from the side of the road where he and Childress discovered it, that Childress, after being put out of the car by appellant, had gone back and taken the whisky. Appellant’s defense was a denial of the whole transaction as claimed by the state. If any affirmative defense was presented by appellant’s testimony, it was that of alibi. No request was made that this issue be submitted. As we understand the record, the charge given upon the converse of principals protected appellant in so far as the evidence made such charge pertinent. The jury was told substantially that appellant must have been present at the scene of the robbery, but that his mere presence would not be sufficient to show that he was a principal offender, but the evidence must show that he either agreed to the commission of the offense, or by acts or words aided or encouraged Childress, Everett, and Batchelor, or either of them, in the commission thereof, and that, unless the jury believed from the evidence beyond a reasonable doubt that appellant had agreed to the com- ' mission of the offense, if any was committed, by Childress or either of the other parties, or aided them by words or gestures in the commission of the offense, they would acquit appellant, even though they might believe that Childress, Everett, or Batchelor, or either of them, committed the offense charged:

• There are other matters mentioned in appellant’s motion for rehearing which we regard as having been properly disposed of in the original opinion, and do not believe they call for further discussion. We have given the record in this case as serious and close consideration as is possible for us to do, and it is not thought any errors appear which would justify a reversal.

The motion for rehearing is overruled.

MOBROW, Presiding Judge

(dissenting).

Referring to the majority opinion, it is clear that, while the appellant, in his testimony, denied his presence at the time the robbery was committed and denied his participation therein, he did not deny that he was a member of the party consisting of Everett, Batchelor, Childress, and himself, who left their home on the night of the alleged offense and went to the underpass for the purpose of intercepting persons who were bringing a quantity of whisky to be-delivered at ór near the underpass mentioned. That he was present and took part in the commission of the robbery is the state’s theory, supported by its testimony. It is thought that, if the appellant, as he claims in his testimony, was not a party to the conspiracy to rob the persons who were bringing the whisky by taking from them either the whisky or their money, and that his presence was mo-tived alone by the willingness to aid in apprehending violators of the law, and did not assent or acquiesce in or know of the taking of the money from Rose or McGowan, he would be entitled to an acquittal of the robbery. The appellant’s testimony cogently presents the theory that his presence at the underpass and his association with the parties charged with the commission of the robbery was for an innocent purpose; that is to say, he was' there to aid • an officer of the law in its enforcement. This theory explaining his presence having been put in the record before the jury, his contention that the law required, at his request, an instruction to the jury that, if they believed his affirmative defensive theory, he should be acquitted, is regarded as sound. That such an instruction is necessary to properly protect the rights of the accused in a case where he relies upon the defense of alibi is settled without conflict. See Hunnicutt v. State, 18 Tex. App. 498. see page 516, 51 Am. Rep. 330 ; McAfee v. State, 17 Tex. App. 131. So, in a burglary case, where there is an issue of consent to the burglary, this court has affirmed the right of the accused to a presentation of the theory in an affirmative manner. See Bird v. State, 49 Tex. Cr. R. 96, 90 S. W. 651, 122 Am. St. Rep. 803. So, in a trial for aggravated assault, where there is affirmative testimony presenting the theory of want of intent to injure, the requirement of an affirmative presentation of the defensive theory has been affirmed. See Moody v. State, 52 Tex. Cr. R. 232, 105 S. W. 1127. Many additional cases might be cited illustrating the principle asserted, namely, when facts appear in . the record presenting an affirmative defense, as that term is understood, a charge is incomplete which fails to direct the attention' of the jury in a specific manner to the defensive theory. See McCall v. State, 14 Tex. App. 353; Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906.

The conclusion above stated is emphasized by the refusal of the court to give to the jury, in substance or in effect, appellant’s special charge No. 5, in which it was sought to have the jury instructed that, if from the evidence it was believed that W. W. Batchelor was a commissioned deputy sheriff of Ellis county, and had requested the appellant to assist him in making the arrest of persons who were violating the law, the appellant had a right to be present and by all lawful means assist in arresting persons who were violating the liquor law. Touching the right of the appellant to be present in accord with his theory, namely, that he was acting under deputation from a deputy sheriff, the charge of the court is silent.

In failing to give to the jury an instruction embracing the theory and contention of the appellant, as supported by liis testimony, the opinion is expressed that the court was in error of a nature which should bring about a reversal of the judgment of conviction.

The motion for rehearing should be granted.


author: HAWKINS, Judge.

text:
    HOSKINS v. STATE.
    No. 15820.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Lynn B. Griffith and G. Goodwin Sweatt, both of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for murder; punishment having been assessed at death.

It was charged in the indictment that appellant with malice aforethought killed Addie George by shooting him with a pistol. It was further charged by proper averments in the indictment that appellant had been theretofore convicted in Limestone county, Tex., of the offense of murder; it being the purpose of the state’s pleading to bring the case under the terms of article 64, P. C. which reads as follows: “A person convicted a second, time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.”

The evidence for the state established the following facts: Appellant, under the name of Walter Hoskins, had been convicted in Limestone county, Tex., of the offense of murder in 1931, and his punishment assessed at fifty years’ imprisonment in the penitentiary. After serving about one year of this sentence, he escaped and changed his name to Willie Brown. It further appeared in evidence that before the killing in Limestone county appellant had served a two-year term in the penitentiary upon a conviction for assault with intent to murder in Red River county, Tex. The killing in the present instance occurred at a negro supper or entertainment of some kind given at a private residence.

Without apparent cause or provocation appellant drew a pistol, waved it around, pointed it at various people, commanding them to run, all the time asserting that he was a bad man, in profane and threatening language. No one commanded to run seems' to have “stood upon the order of their going,” and appellant accelerated their movements by shooting at them, or snapping his gun at them. Deceased was a boy about 18 years of age. At the time he was shot, he was doing nothing but trying to get out of the hopse and out of the way of appellant. The latter claimed to have been drunk, and said he had no knowledge of shooting deceased or of anything else he did on the occasion. Several witnesses testified that appellant acted like a drunken man, but said they did not see him drink any liquor and saw none at the supper.

In his charge to the jury, the court told them that appellant was charged with murder, and that it was also charged that he was the same person who had been tried and convicted of a similar offense in Limestone county, Tex., in 1931, and that appellant had pleaded guilty after being properly admonished by the court, and directed the jury to find appellant guilty and assess his punishment at death, or by confinement in the penitentiary for life. The jury returned the death penalty.

No objection was lodged to the instructions given. Appellant requested a special charge which defined malice aforethought, and would have instructed the jury that, unless they believed beyond a reasonable doubt that appellant was actuated by malice aforethought, they could not assess the punishment at a longer term than five years in the penitentiary. Exception was reserved to the refusal of this requested charge.

By his plea of guilty, appellant admitted all the material allegations of the indictment, as well as the statutory elements of the crime charged therein, including malice aforethought. Aills v. State, 114 Tex. Cr. R. 345, 24 S.W.(2d) 1097; Anderson v. State, 118 Tex. Cr. R. 194, 42 S. W.(2d) 1012; Johnson v. State (Tex. Cr. App.) 48 S.W.(2d) 274; Vance v. State (Tex. Cr. App.) 54 S.W.(2d) 118. Presumably, the requested charge was predicated on a provision of our present murder statute (Acts 1927, 40th Leg. 1st Galled Sess. p. 18, c. 8, § 1, and found in the Vernon’s Ann. Tex. P. C., as article 1257b) which in part, reads: “In all cases tried under the provisions of this act, it shall be the duty of the court to define ‘malice aforethought’ and shall apply that term by appropriate charge to the facts in the case and shall instruct the jury that unless from all the facts and circumstances in evidence the jury believes the defendant was prompted and acted with his malice aforethought, they cannot assess the punishment at a period longer than five years. * * . * ”

The law quoted must be construed in connection with Acts 1931, 42 Leg. p. 94, c. 60, § 1, and found in the Vernon’s Ann. Tex. P. 0., as article 1257c, which reads as follows; “In all cases tried under the provisions of this act it shall be the duty of the court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would -commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mini incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”

In the present ease no .’evidence is found which even remotely raises an issue that the killing may have been done under the immediate influence of sudden passion arising from an adequate cause. In truth, the killing appears to have been without cause of any kind, save a desire on appellant’s part to kill.

In view of the plea of guilty, and the facts found in the record, the refusal of the special charge is not deemed erroneous.

No other question is presented for review.

The judgment is affirmed.


author: ' LATTIMORE, Judge. HAWKINS, Judge.

text:
    ALEXANDER v. STATE.
    No. 15006.
    Court of Criminal Appeals of Texas.
    April 20, 1932.
    Rehearing Denied March 1, 1933.

      Woolworth & Baker, of Carthage, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. .
   ' LATTIMORE, Judge.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Having a search warrant in hand, apparently regular, officers searched appellant’s house on August 1, 1931, "and found therein a quantity of intoxicating liquor. If admissible, the evidence was amply sufficient.

The jurat to the written affidavit upon which the search warrant was based reads as follows:

“Sworn to and subscribed before me by J. S. Gholston and B. W. Reed, two credible persons, on this - day of-A. D. 192—

“D. P. Donavan, Justice of the Peace, Precinct No.-, Texas.”

The indorsement on the back of said written affidavit was as follows:

“Pile No. 1996, The State of Texas vs. Steve Alexander, Complaint Piled 1st day of Aug. 1931.

“[Signed] D. P. Donavan, Justice of the Peace, Precinct No. 1,, Panola County, Texas.”

Two grounds of objection were presented to the trial court against the reception of the evidence of what the officers found in their search: First, that the affidavit was made on information and belief, and failed to set out any facts upon which such belief rested; second, that same was void, not bearing any date or stating either the county or precinct of the residence of the officer purporting to have administered the oath.

As to the first complaint, the written affidavit contains the following: “This affidavit .is based upon the following facts, circumstances and information, to-wit: That said residence is a place where intoxicating liquors are manufactured or sold in violation of the laws of this state.”

This we regard as a direct averment that intoxicating liquor was being made or sold at appellant’s said residence. Ware v. State, 110 Tex. Cr. R. 90, 7 S.W. (2d) 551; Bird v. State, 110 Tex. Cr. R. 99, 7 S.W.(2d) 953; Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Harris v. State, 112 Tex. Cr. R. 219, 15 S.W.(2d) 1048; Stanzel v. State, 112 Tex. Cr. R. 628, 18 S.W.(2d) 158; Torres v. State, 113 Tex. Cr. R. 1, 18 S.W. (2d) 179; Welker v. State, 114 Tex. Cr. R. 387, 23 S.W. (2d) 388; Antner v. State, 114 Tex. Cr. R. 248, 25 S.W.(2d) 860.

As to the other ground, article 310 of our Code of Criminal Procedure states that a search warrant may be issued by a magistrate when a written, sworn complaint is made to him, which contains four requisites, named. It is not laid in said article as a requirement that such written complaint be dated, or that the name of the precinct or county of the residence or jurisdiction of the magistrate be set forth. If we look to article 415, C. C. P., it provides that an affidavit for information may be made before any officer authorized to administer oaths; while article 23, Rev. Civ. Stats. 1925, defines an affidavit as a statement in writing of a fact or facts, signed by the party making it, and sworn to before some officer authorized to administer oaths. We have no statutory definition of “Affidavit” in our Penal Code or Code of Criminal Procedure.

In the case of Order of Aztecs v. Noble, 174 S. W. 623, in a well-reasoned opinion, our Court of Civil Appeals, speaking through the lamented Judge Rice, held that failure to date an affidavit was not fatal. The same thing was held by the Court of Appeals of Kentucky in the well-considered case of Blackburn v. Com., 202 Ky. 751, 261 S. W. 277, in which appears the apparently sound statement that the jurat is not part of the affidavit, under the great weight of authority, unless made so by statute. Nowhere in our statute is it required that the date be inserted in the jurat, or that it contain the number of the precinct or name the state of the jurisdiction. See Maples v. Hicks, Brightly N. P. 56, 3 Pa. Law J. 17, 244; also Boren v. State, 80 Tex. Cr. R. 635, 192 S. W. 1063; Means v. State, 92 Tex. Cr. R. 323, 244 S. W. 149; Stanzel v. State, 112 Tex. Cr. R. 628, 18 S.W. (2d) 158. In the ease of Gentry v. State, 62 Tex. Cr. R. 497, 137 S. W. 696, this court held that the file mark on the back of the written complaint might be looked to in appraising the sufficiency of the jurat. As in line with this and the Stanzel Case, supra, attention is called to the recitals in the search warrant in the case before us which show that it was issued on August 1, 1931, the same date as that of the filing with the magistrate of the affidavit referred to, as appears from the file mark thereon, and in which we find this statement:

“Whereas, complaint has been made in writing and under oath, before me by J. S. Gholston and B. W. Reed, two credible persons, alleging that they have reason to believe and do believe that there is, on this date, ⅜ ⅜ * whisky, wine, beer, etc., being sold and manufactured in said private dwelling, etc. It appearing upon examination, and after proper showing has been made, * * * that the conditions and violations as described in this warrant exist upon this, the date of the issuance hereof. * * * You are therefore commanded,” etc.

“Witness my official signature on this the 1st day of August, A. D. 1931. D. P. Donavan, ■Justice of the Peace Precinct No. 1 of Panola County, Texas.” • ' ,

It appears without dispute that the affidavit was made before the same magistrate who issued the search warrant. The sufficiency of the affidavit, as said by us in the Stanzel Case, supra, “Was primarily for the magistrate to pass upon, it being apparent that he prepared both parts,” etc. It being certified by the magistrate in said warrant, in the instant case, officially signed by such magistrate, that the parties making said affidavit had sworn that on the date of this warrant, to wit, August 1, 1931, appellant was selling and making whisky, etc., and upon examination and proper showing that such conditions did exist upon said date, that he found cause sufficient to authorize the issuance of the warrant. Such finding was within the power and jurisdiction of such magistrate, and was evidently regarded by the trial judge herein as res adjudicata, as far as he was concerned. We think he was correct, and that none of the contentions of appellant are sound. The Glenniwinkel Case, 114 Tex. Cr. R. 188, 21 S.W.(2d) 514, cited by appellant, has only reference to the fact that the search warrant must be dated, which requirement is statutory, and does not in any way refer to the affidavit.

Not being able to agree with appellant’s contentions, the judgment will he affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

Appellant bases his motion for rehearing upon the proposition that the affidavit upon which the search warrant is based was insufficient to show that the events and, circumstances alleged therein were not so remote as to furnish no proper predicate for the warrant. The point now made seems not to have been urged in the court below. It is our opinion that the information upon which affiants based their affidavit, as set out in our original opinion, related to a then existing condition. Such was the evident impression made upon the magistrate who issued the warrant, for we find therein the following recital:

“It appears upon examination, and after proper showing has been made, and upon the allegations that the conditions and violations as described in this warrant exist upon this, the date of the issuance thereof.’.’

In Garza v. State (Tex. Cr. App.) 48 S.W. (2d) 625, and Odom v. State (Tex. Cr. App.) 50 S.W.(2d) 1103, the affidavit presents a different situation. The case of Hartless v. State (Tex. Cr. App.) 50 S.W.(2d) 109T, is more like the one now before us.

The motion for rehearing is overruled.