Spears v. State , 91 Tex. Crim. 51 ( 1922 )

This court's only purpose in what may be said regarding the procedure had in any case, is that its ruling in the particular case may be understood, and that such procedure, if erroneous, may be avoided in future trials of the same or other cases. We tried to say in our opinion herein that the accused has a right to be heard by counsel to present his objection to any proceeding had on his trial, and that he may not be compelled to wait until a witness giving objectionable evidence, has finished his testimony, before presenting to the court his objection to the various matters in such examination. We do not think the trial courts likely to attempt to put counsel in jail for contempt, whose only offense is that he has offered to make his objection to supposed errors when committed. In the instant case we did consider the objections made at the conclusion of the testimony of the various witnesses. It is insisted anew that the trial court erred in allowing the State to introduce evidence that appellant had written to George Gunther several letters, and to interrogate appellant when on the witness stand as to the contents of a letter written by him to Gunther before the latter came to El Paso. It appears from the bill that the State showed to appellant while on the witness stand, a letter written by him, and asked him if he did not write same to George Gunther, to which appellant replied, yes. He was then asked if in that letter he did not tell Gunther there was easy money out here and to come on out. Appellant answered that he did, but that he did not refer to El Palso but to Old Mexico. He was then asked if he did not write Gunther to come out here and they would go over to Juarez and hold them up, which was denied by appellant.

The State's theory throughout was that after Gunther came to El Paso at appellant's solicitation, he and appellant engaged in joint theft enterprises. We see no objection to the evidence. Whether appellant's statement to Gunther that there was easy money out here was susceptible of a construction hurtful to him, was a question for the jury. Appellant was permitted to make his explanation, which was also for the consideration of the jury. Appellant denied telling Gunther if he would come out they would go over to Juarez and hold them up. If this was not in the letter it could have been easily demonstrated by an exhibition of same to the jury. Appellant does not seem to have sought to avail himself of such privilege. No objection was made that the questions of the State called for secondary evidence of the contents of a letter. The principle involved is not akin to that which rejects evidence of a separate and disconnected crime, such as was referred to in Watson v. State, 88 Tex.Crim. Rep., 225 S.W. Rep., 754. We think the principle rather applicable to prior acts and declarations of persons engaging with a common design in crime. Blaine v. State, 33 Tex.Crim. Rep.; Baker v. State, 45 Tex. Crim. 392; Smith v. State, 48 Tex.Crim. Rep.; White v. State,60 Tex. Crim. 559.

We have also carefully considered what is said by appellant in his motion for rehearing in regard to the matters complained of in bill of exceptions No. 8. Appellant's objection as set out in this bill of exceptions was to no question or answer, but appears to be stated thus: "The defendant now urges the objection that all of said testimony other than that which shows that he was under indictment in the district court, for the purpose of affecting his credibility as a witness, was inadmissible, and especially that portion of said testimony which tended to show that the defendant was not only under indictment charged with aiding in conveying a stolen car from the State of Texas to New Mexico, but was more than likely guilty of said offense, it being an entirely different transaction for which he was on trial, was wholly inadmissible for any purpose," etc. It does not require argument to make it clear that an objection such as this contained in a bill of exceptions and referring to evidence set out in said bill covering five pages of questions and answers, is not in form as required by the rules. We have again reviewed the facts as same appear in said bill of exceptions, in an effort to give to appellant the benefit of any objection, but are not able to conclude that any of said evidence was inadmissible. Appellant was charged in the instant case with robbery, it being claimed by the State that part of the property taken by him and Gunther on the occasion in question was an automobile. Appellant denied positively that he was with Gunther and participated in theft or robbery with him. The evidence set out in said bill of exceptions shows that appellant was under indictment for sundry other felonies, shows when and where he had been arrested, and when and how he fled from the State of Texas. We are unable to find anything in said cross-examination which does not appear to be within the rules. Evidence of flight is always admissible. The fact that such flight was in a fine car and with the man charged to be his co-actor, in the instant robbery, would not seem to be objectionable. The fact that circumstances are in evidence connected with the flight of appellant, which would seem to reflect the commission of another crime, has often been held not to render such circumstances inadmissible.

Appellant complains of the fact that we did not fully set forth the grounds of his bill of exceptions No. 1. Said bill consisted of a lengthy recitation of matters which seem to us to present no valid ground of objection. It was recited therein that appellant and George Gunther were jointly indicted, and that when the case was called for trial, the lower court asked Gunther if he desired a severance, and that Gunther replied that he did not, and that the trial court then requested some attorney to act as attorney for Gunther, and for reasons stated such attorney asked to be excused, and that thereupon the court asked still another attorney to act for said Gunther, and that said other attorney for reasons stated also asked to be excused, and that the court then appointed Hon. L.A. Dale, who accepted such appointment and requested a severance on behalf of his client. We could see no good reason for setting forth the various matters contained in the bill of exceptions relating to statements made by the various attorneys as to their reasons for not accepting the appointment of the court and for not representing Gunther. Just what ground of any claim for injury to appellant appeared in any of the matters set up in bill of exceptions No. 1, was not perceptible to us. If it was that appellant desired to use Gunther as a witness in his behalf, he had the right to make an affidavit for severance himself, and ask that Gunther be put upon trial upon a statement of his belief that Gunther would be acquitted. If no severance had been had, and Gunther had declined to take the witness stand for any reason satisfactory to him, appellant could not have used him as a witness, and we see no ground of complaint.

Being unable to agree with appellant in his contentions, the motion for rehearing will be overruled.

Overruled.