Burns v. State , 12 Tex. Ct. App. 269 ( 1882 )

Willson, J.

The first question presented in this case for our determination is the sufficiency of the indictment. The charging part of the indictment is as follows: “that one J. R. Burns and Doctor Goodnight, whose given name is to the grand jurors unknown, late of said county, on the 16th day of May, A. D. eighteen hundred and seventy-eight, with force and arms in the county and State aforesaid, did then and there, in and upon the person of one E. F. Davidson, unlawfully, wilfully and feloniously make an assault, and him the said E. E. Davidson, by means of said assault, and by violence, in fear of his life, and bodily injury, then and there feloniously did put, and one gold watch of the value of one hundred and fifty dollars, one gold collar-button of the value of three dollars, one pistol of the value of seven dollars, one United States currency note, current money of the United States of America, of the denomination and value of five dollars, and one hundred twenty-dollar gold coin pieces, current money of the United States of America, each of the value and denomination of- twenty dollars, and of the aggregate value of two thousand dollars, of the moneys, goods and chattels of the said E. F. Davidson, from the possession, and against the will of him the said Davidson, then and there violently and fraudulently did take and carry away, with the intent then and there of appropriating the said property of the ■said Davidson to their own use and benefit; contrary,” etc.

After conviction, the defendant moved in arrest of judgment upon the ground that the indictment “does not allege that the said Davidson was induced by means of the assault and violence against him, alleged to have been committed by the said Goodnight and Burns, to give up to them the property alleged to have been taken, or that said, property was obtained from the said Davidson by the said Goodnight and Burns, by reason of, or by means of said alleged violence and said assault.” The motion in arrest of judgment was overruled, and this action of the court is now assigned as error.

The indictment pursues substantially the common law precedent of an indictment for robbery, and would, we think, be a good indictment at common law. (Wharton’s Precedents, 410; 2 Bishop’s Cr. Proc. 1002.) This court has decided that the common law form of indictment for this offense will suffice. (Reardon v. State, 4 Texas Ct. App. 602; Bell v. State, 1 Texas Ct. App. 598.)

The Code defines robbery as follows: “If any person, by assault, or by violence and putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property, with intent to appropriate the same to his own use, he shall be punished,” etc. (Penal Code, art. 722.) The indictment, we think, contains every element of the offense of robbery as defined above. It is earnestly contended by counsel for defendant that it is not alleged that Davidson was induced to part with bis property, or that it was obtained from him, by the assault, or putting him in fear. After charging the assault, and the putting in fear, the allegation of the taking immediately follows, and the taking is alleged to be violent and f raudulent, and in our opinion this fully answers the objection urged by counsel. We think there was no error in the judgment of the court overruling the defendant’s motion in arrest of judgment.

Numerous objections have been ingeniously presented to the charge of the court, and argued with much ability by counsel for defendant. We have, in the light of this argument, carefully scrutinized the charge of the court, in connection with the evidence in the case, and we cannot concur with counsel in their objections. We think the charge of the court, taken as a whole, is the correct law of the case, and as favorable to the defendant as the facts would warrant. It is plain, direct and easily comprehended, and not calculated to be misunderstood, or to mislead.

• The defendant assigns as error the judgment of the court overruling his motion for a new trial. One ground of this motion is that he was required by the ruling of the court to accept or reject a disqualified juror. One Carmichael was presented as a juror, and he was challenged for cause by defendant,-—the cause of challenge being that said Carmichael was a deputy sheriff. The court overruled the challenge, and the defendant then challenged the juror peremptorily. In this ruling the court did not err. The fact that Carmichael was a deputy sheriff did not disqualify him as a juror, and was no cause for challenge. (Code Crim. Proc. art. 636.) A •civil officer is exempt froni jury service, should he see proper to claim the exemption. (Rev. Stats. art. 3014.) But this exemption is a personal privilege of the juror, which no one but himself can claim the benefit of, and is in no sense a disqualification.

Another ground for new trial which is strenuously insisted upon by defendant is that since the trial the defendant has discovered material evidence in his defense, which he could not by any reasonable diligence have before discovered. The same rules govern motions for new trial in criminal as in civil cases, where newly-discovered evidence is the ground of the motion. (Code Crim. Proc. 777; Bell v. State, 1 Texas Ct. App. 598.) Applications for new trial upon this ground will be scrutinized with much strictness. They are addressed much to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court below has abused its discretion, and that thereby injustice may have been done the' party. (Mitchell v. Bass, 26 Texas, 372.) It is a well settled rule, that to entitle a party to a new trial upon the ground of newly-discovered evidence, the evidence must be such as would likely change the result. (Gaines v. State, 41 Texas, 334; West v. State, 2 Texas Ct. App. 210; Johnson v. State, Id. 456; Higginbotham v. State, 3 Texas Ct. App. 447; Blake v. State, 3 Texas Ct. App. 581; Haselmeyer v. State, 6 Texas Ct. App. 21; Brown v. State, 6 Texas Ct. App. 286; Templeton v. State, 5 Texas Ct. App. 398; Hutchinson v. State, 6 Texas Ct. App. 468.) The court below evidently did not think that the newly-discovered evidence was of a material character, or such as would be likely to change the result upon another trial. In view of the positive and overwhelming nature of the evidence of defendant’s guilt shown by the Tecord in this case, we agree with the trial court that this newly-discovered evidence, even if it were admissible, would not be at all likely to change the result.

We have discovered no material error in the proceedings in the court below, and the judgment of conviction is affirmed.

Affirmed.