Palmer v. State , 128 Tex. Crim. 293 ( 1934 )

Appellant, through his counsel, reiterates his contention that the indictment is insufficient. It is difficult to make a more comprehensive statement of the conclusion of the court than that which is contained in the opinion affirming the case.

The averment in the indictment against the appellant follows the statute. Omitting the formal parts, the indictment reads as follows:

"THE GRAND JURORS," for the county of Walker, State aforesaid, duly organized as such at the May Term, A.D., 1934, of the District Court for said County, upon their oaths in said Court present that Joe Palmer on or about the 16th day of January, A.D., one thousand nine hundred and thirty-four and anterior to the presentment of this Indictment, in the County of Walker and State of Texas, did then and there unlawfully and voluntarily, and with malice aforethought, kill Major Crowson by shooting him with a pistol.

"And the grand jurors aforesaid, do further present that prior to the commission of the aforesaid offense by the said Joe Palmer, to-wit, on the 20th day of May, A.D., 1929, in the district court of Limestone County, Texas, the said Joe Palmer was duly and legally convicted in said last named court of an offense of which the penalty of death was and is affixed as an alternate punishment, to-wit, the offense of Robbery, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction, and said conviction was a final conviction, against the peace and dignity of the State."

Appellant contends that the failure to embrace in the indictment above copied an averment stating that appellant was convicted of the offense of "robbery with firearms" characterizes the indictment as fatally defective.

The statute denouncing robbery is article 1408, P.C., 1925, which reads as follows: "If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punishment by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm orother deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years."

The sentence in the District Court of Limestone County reads as follows: "IT IS THE ORDER OF THE COURT that the defendant, Joseph Palmer, who has been adjudged to be guilty of Robbery with Firearms, and whose punishment has been prescribed at confinement in the penitentiary for a term of not less than five nor more than 25 years, be delivered by the Sheriff of Limestone County, Texas, immediately, to the Superintendent of Penitentiaries of the State of Texas, or other person legally authorized to receive such convicts, and the said Joseph Palmer shall be confined in said penitentiaries for a term of not less than 5 nor more than 25 years, in accordance with the provisions of the law governing the penitentiaries of said State, and the said Joseph Palmer is remanded to jail until said Sheriff can obey the directions of this sentence."

The syllabus in the case of Robinson v. State, 149 S.W. 186, contains the follows: "In an indictment for a statutory offense, the identical language of the statute need not be used, but the indictment will be good if the offense be set forth in plain and intelligible words which are of equivalent or more extensive meaning than those used in the statute."

Such is the conclusion of this court as stated in many cases.

In the case of Thompson v. State, 16 Texas Appeals 75[16 Tex. Crim. 75], this court, speaking through Judge Willson, said: "While it is the safer practice to use the precise words of a statute in charging the offense, it is not always essential to do so. If the indictment follows the statute in substance, it will suffice. If the offense be set forth in plain and intelligible words, which are of equivalent or more extensive meaning than those used in the statute in defining the offense, the indictment will be good."

The same conclusion comes from the opinion of Judge Davidson in the case of Runnells v. State, 34 Tex.Crim. Rep.. See also Willson's C.C.P., art. 428a, and authorities cited in the case of Robinson v. State, 149 S.W. 186, (especially page 187).

Robbery being an offense authorizing the jury to assess the death penalty only on condition that the offense is committed by the use of firearms or other deadly weapon, it seems clear that the statement in the indictment that the appellant had been legally convicted of an offense for which the alternate penalty of death is authorized, is not subject to the criticism advanced by the appellant. If that part of the indictment against appellant which deals with the previous offense of which he was convicted rendered the indictment defective, it would be the duty of this court to reverse the judgment notwithstanding the evidence portraying the incidents of the tragedy which resulted in the death of Major Crowson. As set out in the record on this appeal, the evidence was doubtless such as to impress the jury with the conviction that the appellant was guilty of the murder of Major Crowson under conditions which presented no extenuating circumstances. It seems more than probable that the evidence of that tragedy accounted for the verdict assessing upon appellant the extreme penalty other than the previous conviction of the appellant. The evidence disclosing the circumstances of the assault and mortal injury of Major Crowson are set forth in substance in the original opinion delivered in this appeal.

The dying declaration of Major Crowson, is quoted in substance in the original opinion, against which there is directed no criticism and which so far as we are able to discern is subject to none. The accuracy of the dying declaration and the propriety of receiving it is challenged by no bill of exception; nor is the remark attributed to Major Crowson, as disclosed by the testimony of Gordon Burns (which is not in the dying declaration) made the subject of exception. The statement of Burns setting forth the dying declaration of Major Crowson is criticized as being prejudicial but it is not controverted; nor, as stated above, is there any exception to its introduction in evidence. The only place in the record in which we have perceived any complaint of the reception of evidence is in the motion for new trial. To require or authorize consideration on appeal, the evidence set forth in the motion for new trial should have been made the subject of objection at the time it was offered and a bill of exception reserved if any unfavorable ruling was made.

Article 667, C.C.P., and its interpretations in the decisions of this court make clear that except in rare instances the complaints of the ruling of the court upon the reception or rejection of evidence cannot be reviewed or revised unless it appear from the bill of exception that the objection to the ruling of the court was made during the trial and that his action thereon was certified in the bill of exception, approved and signed by the trial judge. Additional precedents will be found in the 1934 Supplement to Vernon's Ann. Tex. C.C.P., vol. 2, p. 47. The same principle and practice applies with reference to the objections to the charge of the court. See Twitty v. State,116 Tex. Crim. 548; Sheffield v. State, 118 Tex. Crim. 329. The statute and the procedure are based upon the principle that the supposed or alleged error of the trial judge in ruling upon the reception of evidence should at the time be called to his attention in an exception to the end that he might revise or correct the ruling, if necessary, and his refusal to do so cannot be reviewed on appeal in the absence of a statement in the way of a bill of exception signed by the judge showing that appropriate and timely objection was made and that the court declined to change his ruling. See articles 657 to 666, inclusive, Vernon's Ann. Tex. C.C.P., 1925, vol. 2, pp. 138-342.

Notwithstanding the absence of certified bills of exception, we have examined the various matters presented for review. The principal one is the contention that the indictment was imperfect and that the charge on the enhanced penalty was not justified under the circumstances. Our expressions upon the subject are embraced in the foregoing remarks.

The evidence that appellant and others acted in the commission of the offense justifies an instruction upon the law of principals. There was fairly presented in the charge the question as to whether or not appellant acted upon malice. The jury was instructed in a manner to exculpate the appellant if Raymond Hamilton was the offender and appellant was not a principal.

Our examination of the charge, which is voluminuous and carefully prepared, leaves us of the opinion that it revealed no error which would justify this court in reversing the judgment, even if there had been exception to the charge made and reserved before it was read to the jury.

We are constrained to overrule the motion for rehearing, and it is so ordered.

Overruled