Collins v. State , 77 Tex. Crim. 156 ( 1915 )

Appellant in this motion for rehearing assigns six grounds why he thinks we erred in affirming the judgment, and why the rehearing should be granted, and the case reversed. We will discuss only these six, for in the original opinion we acted on each question raised, and appellant complains of us for so doing. Of one of his bills filed he says: "This was not seriously insisted on in the trial court. It was really jocularly done." If so, we can not understand why counsel took the trouble to make and secure the approval of the bill and file it. We have before this been criticised for not passing on each bill in the record in detail, but never before for taking the care and trouble to act on each bill presented. Hereafter we hope counsel will mark those he intends "as a joke" and we will omit discussion of them. We have said this much as a reason for discussing at this time only the six grounds in appellant's motion, instead of again reviewing the entire record.

His first contention is that we were hypercritical in holding that he did not ask for a postponement of the trial, but the motion filed was a motion to quash the indictment. The motion reads: "Now comes the defendant and, after arraignment upon the indictment and which has just been read to the jury, and before pleading thereto, objects to going to trial upon said indictment, and moves the court to quash and set aside the same because said indictment is not a true original of the certified copy by the district clerk of Tarrant County, Texas, served on him." If this is other than a motion to quash the indictment we can not understand the language used. And in approving this bill the court states: "The above bill of exceptions is examined, found correct and approved with the explanation, however, that both the State and defendant had announced ready for trial, the jury had been selected and sworn in the case and the indictment read to the jury; the defendant when called on to plead to same declined to do so for the reasons set forth in the above motion." When one accepts a bill as qualified by the court in approving same, he can not afterwards contend that the qualification is incorrect. (Hardy v. State, 31 Tex.Crim. Rep.; Levine v. State, 35 Tex.Crim. Rep.; Brown v. State, 32 Tex. Crim. 119; Boyett v. State, 2 Texas Crim. App., 93; Blain v. State, 34 Tex.Crim. Rep..) If the language used in the motion to quash the indictment could be construed into a motion to postpone the case until another copy of the indictment was served on him, certainly he could not announce ready for trial; plead to the indictment when arraigned, select a jury and have it sworn, and then when the indictment was read to the jury, refuse to plead because the copy of the indictment served on him was not a literal copy of the indictment returned into court. There was simply a failure to attach the sheets correctly together, the first page being placed last, but each count in the indictment was correctly copied in the copy served on appellant. If one by his acts and conduct could at any time be held to have waived service of copy of indictment, certainly appellant did so in this instance.

The next contention is, that the case of Simms v. State, 10 Texas Crim. App., 131, correctly enunciates the law, and the numerous decisions cited to the contrary are erroneous. This contention has often been made and as often overruled. The authorities are so numerous and harmonious on this question we will not take the trouble to cite authorities other than those cited in the original opinion.

In his original brief appellant contends "the court erred in refusing to permit counsel to ask each and every venireman as to their bias or prejudice against his main defense as shown by bills of exceptions Nos. 5, 6 and 7." In his motion for a new trial it is one of the bills on this question that he says was "jocular" and not seriously contended for even in the trial court, but in the motion for a new trial he says, "The point, and only point, we insisted on was the one" in which he asked Mr. Gilbert: "Have you any prejudice to the defense of alibi?" The witness answered "No." He then propounded the question: "Have you any aversion to the defense that a man is not connected with the crime by illegal act or omission, and that he is not a principal, accomplice or accessory?" The court declined to permit him to ask this question. Appellant now says this is the instance in which the court erred and the only one relied on. The trial court must have and exercise some discretion in controlling the examination of jurors, or trials would be almost endless. However, the examination should be allowed to be broad when its purpose is to show that an opinion on the merits of the case has become fixed in the juror's mind, or that he entertains bias or prejudice against the person on trial. The question to which the objection was sustained would bear no relation to these matters and there was no error in the ruling of the court.

The next contention is that the court erred in permitting the witnesses Blanton and others named to remain in the courtroom. Appellant admits that the cases hold that for him to have properly presented this matter for review, he should have objected at the time the witness was offered, and the objectionable part of his testimony contained in the bill, but says "these are absurd technicalities." We do not think so. The trial court is possessed of discretion in this matter, and if his ruling worked injury to the appellant it should be pointed out in what respect the testimony did so, otherwise we can not hold that he abused his discretion in the premises. The facts must be presented to us — not an abstract proposition.

Appellant next insists that it was error to permit the testimony that appellant had sought to have powders administered to Mr. Greer, and argues at great length that this was not admissible on the issue of motive. This was unnecessary as we held in the original opinion that it was not admissible for that purpose, but was admissible on the issue of identity of appellant as the person who at the time of the robbery made the murderous assault on Greer. And all the text-books so hold, in addition to the decisions of our own court. Mr. Wharton, in his work on Criminal Evidence, says in section 34: "Evidence of collateral offenses becomes relevant to the principal charge when evidence thereof will serve to identify the accused as the person committing the offense for which he is on trial," citing authorities from almost every State, among them being one decided by this court. (Satterwhite v. State, 6 Texas Crim. App., 609.) In this case Judge White held: "Evidence of independent crimes is admissible when it is necessary to establish identity or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is charged, citing Gilbraith v. State, 41 Tex. 569; Speights v. State, 1 Texas Crim. App., 551; Persons v. State, 3 Texas Crim. App., 240. As shown in the original opinion this evidence tended to identify appellant as the person who committed the assault at the time of the robbery. In Wright v. State, 56 Tex.Crim. Rep., this court said: "The testimony (of other crimes) was admissible to refute appellant's contention that he was not in the neighborhood at the time the homicide was committed. In other words, it was admissible to identify appellant as being the guilty participant in this homicide." In Wyatt v. State, 55 Tex.Crim. Rep., this court held:

"Appellant further objects to the evidence being introduced of the other attempted robberies. The evidence fails to identify the appellant with that degree of conclusiveness necessary, or at least there is not a strong case made out of identification. This being true, it was proper for the court to permit the introduction of the attempted robberies since the evidence conclusively shows that whoever attempted the previous robberies did commit the robbery now under consideration. We have uniformly held that evidence which goes to show intent, or is part of the res gestae, or that serves to identify the defendant as the party who committed the crime, although said evidence may prove other and different crimes, that same is admissible for the purpose stated."

Appellant also contends that as he adduced evidence from his standpoint, tending to show that Greer and Marion Long had entered into a conspiracy to send him to the penitentiary, the court should have instructed the jury on this issue of defense. This would be no defense, for if they had entered into such conspiracy it would be no reason why appellant should be acquitted, if he in fact committed the crime. Testimony that they had entered into such conspiracy was admissible as affecting the credit of Greer and Long as witnesses; that the jury might take into consideration such fact in passing on the weight to be given the evidence of these gentlemen, — their motive in testifying as they did. Appellant cites those cases which correctly hold that the defenses of a defendant should be submitted to the jury. This is the law, but to show that a witness had a motive to swear falsely does not make a defense for defendant, — it simply weakens the testimony offered by the State. Appellant says we cited no authorities on this proposition, and challenges us to do so. We thought this so well established as to need no citation of authorities, but for appellant's benefit we will cite the cases of Rice v. State, 49 Tex.Crim. Rep., p. 585; Carter v. State, 39 Tex.Crim. Rep., and cases cited in sec. 810, White's Ann. C.C.P.

These are all the questions presented in appellant's motion for a rehearing and after again carefully studying the record, appellant's brief, and authorities cited, we are of the opinion that these questions and none of them present error, and the motion for rehearing is overruled.

Overruled.