Underwood v. State , 39 Tex. Crim. 409 ( 1898 )

Ed Underwood and Joe Burger were convicted of robbery by the use of firearms. Underwood was given the death penalt, and Burger a term of ten years in the penitentiary. Both prosecuted an appeal to this court. Since the filing of the record, however, Burger has withdrawn his appeal, accepted his sentence, and is now undergoing the allotted punishment.

When the case was called for trial, both defendants entered their plea of not guilty. At some subsequent stage of the trial, appellant Burger withdrew his plea of not guilty, and entered a plea of guilty. During the progress of the trial, Lock McDaniel, attorney for Burger, took the stand as a witness to explain why Burger had pleaded guilty. The defendant Underwood objected to said witness giving any testimony as to Burger's reasons for pleading guilty, whereupon McDaniel stated that he only proposed to testify to some matters in Burger's behalf in mitigation of the penalty that the jury might assess against him, and the court overruled the objection, and permitted the witness to testify that he (McDaniel) had advised Burger to plead guilty, because he saw no hope for him, as he had investigated the case, and saw that he had no defense, and so advised him to plead guilty. Appellant reserved his bill of exceptions.

There was error in permitting this testimony. The defendant Underwood was jointly indicted with Burger, and the same testimony introduced against one was necessarily testimony as against the other in regard to the main facts; because, if Burger was guilty, the defendant Underwood was also guilty, as the theory of the prosecution was based upon the fact that the two robbed. Ed. Sacks. The opinion of Burger's counsel as to Burger's guilt could not be evidence against Underwood, nor could it be evidence in mitigation of the penalty to be assessed against Burger. As an opinion of the witness it was clearly inadmissible. This opinion could not be given under the circumstances of this case, that his client, Burger, was guilty, without necessarily indicating in said opinion that Underwood was guilty. The statement of the witness that he advised his client to plead guilty because he saw no hope for him after a careful investigation of his case, certainly must have had a very powerful influence upon the minds of the jury as to the guilt of both. Burger and Underwood.

The State offered in rebuttal the testimony of Joe Levy, to the effect that on the night of the 14th or 15th of December, after this alleged robbery on the 9th of November previous, the defendant Underwood was in his store on Louisiana Street, in the city of Houston. This, it seems, was offered in rebuttal of the testimony of George Underwood and his wife, to the effect that from the 11th to the 18th of December the defendant Underwood was at their home every night, and that he worked during the day. If this testimony was offered simply to contradict said Underwoods upon this point, it was an immaterial matter, and had no connection with this case, and should have been excluded. If it was offered for the purpose of showing that on the occasion of his visit to Levy's store he was engaged in a similar transaction at that point to the one under investigation, then it was of the most damaging character; and in either event it was inadmissible and should have been excluded.

The State was permitted to prove by Ed Sacks, the alleged injured party, that the smaller man of the two who came into his store and robbed him had a knife and told him he would, kill him if he did not give up his money, and held the knife drawn on him while he robbed him. The same witness testified that when the two men came into his store and robbed him they said, "Hands up !" and the taller of the two held his pistol on Mrs. Sacks, and told her to give up her money, or he would, kill her; while the shorter man of the two, with a knife in his hand, took away his (Sacks') money from his pocket. This testimony was properly admitted. The point of objection seems to be found in the fact that the witness was permitted to testify in regard to the knife that was used in the transaction, and also that money was taken from Mrs. Sacks at the same time. There is no merit in this contention. It is true that the indictment only alleged the robbery by the means of the use of a pistol. Still this was a part and parcel of the transaction. They robbed both parties at the same time, and a pistol was used by one of the men while the other did the robbing, and it was pointed at both Sacks and his wife, and by means of it they were forced to submit to the robbery.

There are several other interesting questions in the record of more or less importance, but we deem it hardly worth while to discuss them in the attitude in which the case is placed. As before stated, Burger has withdrawn his appeal, and is undergoing his punishment. The alleged misconduct of counsel of Burger in inducing the defendant Underwood to announce ready for trial under the apprehension and with tile belief that he (Burger) was going to fight his case to the end under the plea of not guilty, and thus prevent him from obtaining a severance, or use his right to obtain a severance, can not arise upon another trial; and, as the case will be reversed upon the first two questions above discussed, we will not enter into a discussion of this matter. We would observe, however, that this conduct, taken in connection with the testimony of said attorney, seems to have placed the defendant Underwood in an attitude on the trial in which he ought not to have been placed.

There are also some bills of exception reserved to the action of the court in impaneling the jury. These are not discussed, because they will not occur upon another trial. Neither will we discuss the action of the court in overruling the motion to change the venue, for upon another trial, if such a motion should be made, it may be placed in an entirely different attitude, and upon a different state of facts. And the same may be said of the motion for a continuance. The witnesses may be present upon another trial, and if not, that will be the second application for a continuance and would place the matter in a different attitude. For the two errors discussed, the judgment is reversed, and the cause remanded.

Reversed and remanded.

HURT, Presiding Judge, absent.