Ford v. State , 41 Tex. Crim. 1 ( 1899 )

Appellant was convicted of robbery, and his punishment assessed at confinement in the penitentiary for a term of five years.

Appellant's first bill of exceptions complains of the failure of the court to charge the jury as requested by him, to wit: "If defendant, when first accused of robbing the prosecuting witness, Joseph Seagall, and when goods were found in his possession, and first arrested and charged with the crime for which he is on trial, gave a reasonable account of how he came in possession of the goods found in his possession and claimed by said Joseph Seagall, it then devolves on the State to show the falsity of the explanation." On this phase of the case the court charged the jury as follows: "If defendant obtained from Joseph Seagall possession of any of the property described in the indictment, or if other persons were in company with the defendant and obtained possession of any of such property from Joseph Seagall, yet if you believe that such possession of said property was obtained by purchase or by gift, or by both purchase and gift, from said Joseph Seagall, or if you have a reasonable doubt as to whether such possession of the property was obtained by purchase or gift, or by means of assault, violence, or putting said Seagall in fear of his life or bodily injury, then you must acquit the defendant." We do not think it was necessary in this case for the court to charge as requested by appellant. In cases of robbery, where possession is only one of the circumstances relied upon for the conviction, recent "possession," as the term is ordinarily understood, does not have to be charged upon, as it is where the possession alone is relied upon for conviction. In Hays v. State, 36 Texas Criminal Reports, 533, we held that the charge of the court authorizing the jury to acquit, if they believed defendant had bought the pistol, or if they had a reasonable doubt concerning the matter, was an apt presentation of the defense, and better than if the court had charged upon recent possession and reasonable explanation. And we think the same statement would apply to the charge given by the court in this case; that it was a better charge, and more appropriate to the facts of this case, than a charge on recent possession, such as was asked by appellant. We do not think the court erred in failing to give said charge. Berry v. State, 37 Tex.Crim. Rep.; Mathews v. State, 32 Tex.Crim. Rep.; Teague v. State (Texas Crim. App.), 31 S.W. Rep., 401; Ledbetter v. State, 35 Tex. Crim. 195; Gilmore v. State (Texas Crim. App.), 33 S.W. Rep., 120.

Appellant's second bill complains of the action of the court in the following particular: It appears that there had been a habeas corpus trial of appellant and other parties, including Walter Thompson. Walter Thompson testified on the habeas corpus trial at length, detailing the facts of the supposed robbery. It is not necessary to state in full all of his testimony, which is attached as an exhibit to this bill, but we think we can make it sufficiently intelligible by stating the substance of appellant's contention. The State had offered in evidence four extracts from the written testimony of Walter Thompson on habeas corpus trial, as is fully shown by bill of exceptions number 2. Thereupon defendant offered the entire written testimony of the said Walter Thompson for the purpose of enabling the jury to determine whether or not the same was substantially the same as is defendant's testimony on this trial. But the State objected to the introduction of all of said written testimony, because the same was irrelevant, illegal, self-serving, immaterial, and was an attempt by defendant to get before the jury the testimony of the said Walter Thompson, defendant's codefendant, now charged in this court by bill of indictment with the same offense with which this defendant is now being tried, which objections were by the court sustained. On the habeas corpus trial above mentioned, after the said Walter Thompson had given his testimony, appellant took the stand and stated that the testimony of Walter Thompson was substantially correct. And appellant's bill of exception number 3 complains of the following proceeding: Appellant was fully sworn, and testified as a witness in his own behalf, and in his testimony denied that he or any of his three codefendants robbed the injured party, Joseph Seagall, at the time and place as detailed by the said Seagall and claimed in his testimony; that he and three codefendants purchased from said Joseph Seagall all the articles found on them when they were arrested. He testified, on cross-examination, among other things, as follows: "It was just after Hays called the peddler back that he (Hays) said, `What if I was constable of precinct No. 1,' etc., as stated in my examination in chief. And Hays went to the buggy, and picked the pistol up that was in the scabbard, and showed it to the peddler, and then put it back in the buggy. No; Hays never, at any time, had the pistol in his pants. It is not a fact that, when Hays told the peddler to come and get his damned box, he (Hays) held the box out in his hand, and when the peddler did not come back he (Hays) dropped the box and broke it. No; it is not a fact that the Dutchman, or peddler, gave us all a present. No; it is not a fact that the Dutchman, or peddler, said he would give us all a present, and he did not then set down his grip, and give us a white handkerchief apiece. He gave us nothing, but we paid him for everything we got from him. Yes; I was present in the courtroom, and heard my codefendant Walter Thompson testify on the habeas corpus proceedings instituted by all four of us before Judge McClellan for bail. I also heard the clerk of this court read said testimony over to the said Walter Thompson, and I was requested by my attorneys to and did pay close attention to the reading of said Walter Thompson's testimony. The clerk also swore me on said habeas corpus trial. I then testified orally that I had heard my codefendant Walter Thompson testify in said proceeding. I also testified that I had heard the clerk read said testimony over to said Walter Thompson, and I also swore that the same was substantially correct. I don't remember Thompson swearing on said habeas corpus trial that Hays had the pistol in his pants on his left side when he called the Dutchman back. I don't remember of Thompson swearing on that trial that Hays held the Dutchman's, or peddler's, box up, and told the Dutchman to come back and get his damned box, and when the Dutchman did not come back that Hays dropped the box on the ground and broke it. The box was broken after the peddler came back to where we were. Hays just pitched the box towards the peddler when it was broken. I don't think Thompson swore on said trial that the Dutchman, or peddler, said he would give us a present, and set his grip down, and gave us a white handkerchief apiece. I don't think he swore on said trial that there was nothing taken from the Dutchman but what was paid for, except what he gave us. The peddler did not give us anything. We paid for all we got." The State then offered to read in evidence to the jury, for the purpose of impeaching the defendant, the following extracts from the written testimony of Walter Thompson on the habeas corpus trial, to wit: "First. `When Hays called the Dutchman back, Hays had the pistol in his pants on his left side.' Second. `When he told the Dutchman to come back and get his damned box, Hays held the box out in his hand, and the Dutchman did not come back, and Hays dropped the box and broke it.' Third. `The Dutchman said he would give us a present, and set his grip down, and gave us a white handkerchief apiece.' Fourth. `There was not anything taken from the Dutchman but what was paid for, except what he gave us,'" — to the introduction of which the defendant objected, "because the jury could not judge from these partial extracts from said testimony whether defendant so understood it when read, nor whether from these partial extracts the statement of Walter Thompson, as defendant understood it, and his statement on the stand in this case, were substantially the same."

We will consider these two bills of exception together. The court adds the following explanation to bill of exception number 2: "The court told defendant's counsel that, if there was any other portion of said written testimony which in any way referred to, explained, or threw any light upon any of the matters and transactions contained in those portions of said testimony offered and read in evidence to the jury by the State, the defendant could read to the jury as evidence in this case all such portions. But defendant did not call the court's attention to any such portions, and did not claim that any other portion of said written testimony explained or related in any way to such matters and transactions, but claimed that the same was admissible under the general rule that, where a part of a declaration or conversation is introduced, the whole of it upon the same subject is admissible, if offered by the other party." We think a sufficient answer to the contention of appellant is found in the bill itself, in that the same does not point to us any portion of the evidence that is admissible, but claims that the court erred in failing to admit all of it. Certainly appellant can not contend that the whole of the witness Walter Thompson's testimony is admissible, simply because extracts of same were introduced to impeach defendant. If there are any portions of it that qualify said impeachment, or refute the contention of the State that appellant had made a contrary statement on the habeas corpus trial, that portion would be admissible. But the court in his explanation says that appellant did not point out any portion of said testimony that was admissible. Where some of the evidence objected to is admissible, and some of it not, it is necessary that the bill of exceptions point out that portion of the evidence which is admissible. Where a party offers all of a record, and says it is admissible, and a part of it might be admissible, and part evidently is not, we will not select out for appellant that part which is admissible, but he must do so himself in his bill of exceptions. Rucker v. State (Texas Crim. App.), 47 S.W. Rep., 1014. We do not think there was any error in the action of the court as indicated in either of said bills of exception. See Code Crim. Proc., art. 791; Kunde v. State, 22 Texas Crim. App., 96; Green v. State, 17 Texas Crim. App., 395. And see, also, on the question as to how a bill of exceptions shall be worded, Coyle v. State,31 Tex. Crim. 604; Woodson v. State, 24 Texas Crim. App., 153; Buchanan v. State, 24 Texas Crim. App., 195; Rahm v. State, 30 Texas Crim. App., 310; Schoenfeldt v. State, 30 Texas Crim. App., 695.

Appellant's fourth bill of exceptions complains of the action of the court in the giving of the following charge: "If the defendant obtained from Joseph Seagall possession of any of the property described in the indictment, or if any other persons were in company with defendant and obtained possession of any of such property from Joseph Seagall, yet if you believe that such possession of said property was obtained by purchase or by gift, or by both purchase and gift, from said Joseph Seagall, or if you have a reasonable doubt as to whether said possession of the property was obtained by purchase or gift, or by means of assault, violence, or putting said Seagall in fear of his life or bodily injury, then you must acquit the defendant." Appellant complains of this charge on the ground that there is no evidence whatever that defendant or his codefendants acquired said property, or any portion thereof, by gift, to authorize said charge. Conceding the contention of appellant in this respect to be correct, we do not think it was such error as was calculated to injure the rights of appellant; and under article 723, Code of Criminal Procedure, enacted by the Twenty-fifth Legislature (Laws 1897, page 17), we do not see fit to reverse the judgment on this account. Stewart v. State (Texas Crim. App.), 50 S.W. Rep., 459; Wright v. State, 37 Tex. Crim. 627; Brite v. State (Texas Crim. App.), 43 S.W. Rep., 342.

We note that the assignment of errors complains of the court's charge in several particulars, but these objections are not presented by bill of exceptions nor in motion for new trial. This being the case, we can not review the same, even if they are erroneous. Code Crim. Proc., art. 723; Stewart v. State (Texas Crim. App.), 50 S.W. Rep., 459.

Appellant insists that he should be granted a new trial on the ground of newly discovered evidence. We do not think there was any error in refusing to grant a new trial on this account, because the testimony desired would have simply served to impeach the prosecuting witness; and, furthermore, there is no diligence shown to secure their testimony. Nor do we think the same was probably true in the light of the record before us. The trial court has passed upon the application in this regard, and we see no reason to doubt the correctness of its discretion. The jury have passed upon the facts, and have found appellant guilty, and there is no reason shown why the judgment should be disturbed, and the same is therefore in all things affirmed.

Affirmed.

ON MOTION FOR REHEARING.