Bland v. State , 129 Tex. Crim. 553 ( 1935 )

Appellant insists that we were in error in holding admissible the testimony showing that about seven months prior to the robbery, Jewel Rexrode, while in the store of Price Clements, exhibited to Clements a roll of money in bills, as complained of in Bill of Exception No. 5. The objection to this testimony was that it was remote, hearsay, and that no conspiracy was shown as would authorize the proof. In addition to the facts set forth in the original opinion, the following are shown:

Appellant and Merle Brandt were identified as the actual robbers. Jewel Rexrode was one of the parties robbed. Clements and Brandt were together early in the afternoon preceding the robbery. The appellant was looking for and inquiring for them. About dusk on the same afternoon the appellant, Clements, Brandt and Vaughn were seen to leave Plainview in an automobile. The robbery occurred in Floyd County about 9:30 o'clock that night. While the robbery was being perpetrated, an automobile was stationed a distance of about 178 yards up the road. After the robbery, appellant and Brandt started toward that car and, before reaching it, the motor thereof was heard to start, indicating that another or others were in the car all the while. The robbers got into the car and made their escape.

These facts tended to show that Clements was present at the scene of and participated as a principal in the commission of the robbery, which being true, rendered the testimony objected to admissible under the rule that, where parties are guilty of acting together in the commission of a crime and are present at its commission, evidence tending to show intent and knowledge of one of such party is admissible against the others without regard to other testimony as to a conspiracy. See Cox and others v. State, 8 Texas App., 303; White v. State,60 Tex. Crim. 559; Flatt v. State, 36 S.W.2d 518; Bannister v. State, 15 S.W.2d 629.

It was also shown that during the time Clements operated the store and from time to time until he retired from business, about a month prior to the crime, Jewel Rexrode, was a customer making purchases at the store and of Clements, each time paying for his purchase in cash. Proof of such facts was admitted without objection, and was to the same effect as that to which appellant objected and of which he here complains. This deprives appellant of all right to make the objection under consideration. See Graham v. State, 69 S.W.2d 73; Countee v. State, 44 S.W.2d 994; Montgomery v. State, 31 S.W.2d 440.

Believing that the case was correctly disposed of on the original hearing, the motion for rehearing is overruled.

Overruled.