Dill v. State , 6 Tex. Ct. App. 113 ( 1879 )

Winkler, J.

On October 14, 1876, the appellant was tried in the District Court of Dallas County, on an indictment charging him and another with robbery, charged to have been committed in the county of Dallas, on November 1, 1875 ; and of the charge he was found guilty by the jury, and punishment was assessed against him of confinement in the State penitentiary for a period of ten years. A motion and an amended motion for a new trial were made, and were by the court overruled; and the accused was remanded to custody, to “await the further order of the court.” A statement of facts was prepared and filed, and the case was otherwise prepared for appeal, but no final judgment was rendered against the defendant in the District Court.

At a subsequent term, — to wit, on August 21, 1877,— the accused filed a motion in the District Court, in which he avers, “that he was found guilty of the crime of robbery, by a jury, on the 14th day of October, 1876, and his punishment assessed by said jury at ten years in the penitentiary of this State, but that no final judgment has been rendered against him by this court on the verdict of said jury. * * * Wherefore defendant asks that an order be made by this court that a final judgment be rendered nunc pro tune in this cause.” In response to this motion, the court proceeded to enter a final judgment of conviction against the appellant, approving the verdict of the jury theretofore rendered, and ordering the conveyance of the appellant to the State penitentiary, to be there confined for the period of ten years; and from this judgment the present appeal is prosecuted.

The following supposed errors are assigned: “1. The court erred in its ruling, on the testimony (see bills of exception). 2. The court erred in overruling defendant’s motion for a new trial.”

By reference to the bills of exception (which, being the only bills of exception set out in the transcript of the record before us, we presume are the ones mentioned in the assignment of errors) it appears, from the first, that the witness upon whom the robbery is alleged to have been committed, during his examination, was asked why he gave up the money; to which he answered, that “he gave it for the reason that he believed, at the time, he would be killed if he did not give it up.” This testimony counsel moved the court to exclude from the jury, for the “reason that it was not competent for the witness to state his fears, or belief, or the impression on his mind at the time, and that the witness should be held to state the acts and conduct of the defendant at the time, and what the defendant actually did.” The court refused to exclude the testimony, and counsel for defendant took a bill of exceptions to the ruling.

The matter presented by the second bill of exceptions is quite similar to that set out in the first. The same witness was asked why he •“ gave up ” the money in question, which was objected to by counsel on grounds similar to those upon which it was moved to exclude the testimony mentioned in the first bill of exceptions. The objection was overruled, and exception taken.

In order to determine the importance of the testimony about which these questions arose, and the correctness of the rulings of the court complained of, it is proper that we should look to the whole, testimony of the witness, as disclosed by the statement of facts. The witness having detailed the circumstances under which he discovered the persons accused of the robbery, and when and where it took place, and a finesse to mislead them, he says : “ One said, ‘ Shoot him.’ I heard them cock their gun and pistol; I told them to hold on, I would give the money to them. I unlocked the safe, took out the satchel mentioned, with its contents, and handed it to one of the men, who was the prisoner, William Dill. They then rode rapidly away. I gave up the satchel because I believed they would shoot me if I did not.” It seems that the question raised in both the bills of exception alludes to the concluding paragraph or expression of the extract, to wit: “I believed they would shoot me if I did not ” give up the money.

Whilst it is conceded that, as a general rule, “ witnesses must speak as to facts, and cannot be permitted to give their belief or opinions” (Cooper v. The State, 23 Texas, 331), yet it is not perceived that, coming as it did, and in connection with the facts testified to, there was any material error in admitting the testimony. We are of opinion it was competent for the witness to state the effect the acts and conduct of the parties had upon him at the time.

The other error assigned is the overruling the motion for a new trial. The first ground of the original motion is, “because the court erred in overruling defendant’s motion for a continuance.” It is a settled rule of jn’actice that this court will not revise the ruling of the court below, on application for a continuance, unless the question be saved by a proper bill of exceptions to the ruling, taken at the time it was made, and so shown by the record. Owens v. The State, 4 Texas Ct. App. 153. This rule was established by the Supreme Court before the organization of this court. Allen v. The State, 4 Texas Ct. App. 581, and authorities there cited. Finding no bill of exceptions in the record as to the ruling of the court, we would unsettle an established rule of practice to consider the subject now.

The objection to the amended motion for a new trial is, that certain letters appended thereto, on the subject of proving an alibi, are not sworn to. The second ground of the motion is, that “ the court erred in its rulings on the testimony in said cause. ’ ’ This we have already considered, in connection with the first assignment of error. The other ground set out in the motion is, that the verdict is contrary to the law and the evidence.

In considering the law of the case, as we find it in the record, in the several rulings, and in the charge of the court, and the testimony as shown by the statement of facts, we are of opinion the court did not err in refusing a new trial.

From a careful examination of the whole case, not only as to the several matters complained of in the assignment of errors, but elsewhere, we are of opinion that the law of the case has been impartially administered, and that the accused has been convicted on proper and legal testimony; and, finding no such error in the proceedings as would warrant us in interfering with the judgment of the District Court, it is affirmed.

Affirmed.