Finch v. State , 94 Tex. Crim. 586 ( 1923 )

Conviction is for robbery with punishment of five years in the penitentiary.

On the night of the alleged offense C.W. Lowrey and a woman companion were driving out some distance from San Antonio. They had stopped the car by the side of the road and while sitting there, (according to Lowrey's testimony,) three parties came up and at the point of a pistol secured from him a watch and some ten dollars in money. As soon as the robbers left Lowrey reported the matter both to the civil and military authorities. One of the military officers within thirty or forty minutes after the robbery discovered near the scene three men lying in the brush. They ran and he fired at them, striking appellant in the arm. The other two escaped at the time. Soon after appellant was apprehended Lowrey, the woman and an officer then in the car with them met the officer who had appellant in charge. Lowrey positively identified him at that time as one of the robbers and as the identical one who held the pistol on him. He also positively identified him at the time of the trial. The officers present disclaimed knowledge of the woman with Lowrey being called upon to identify appellant, or of hearing her express her opinion as to his identity. Appellant denied the robbery. He claimed that he and two other soldiers had left the military post without leave, and were out on the road where the robbery is alleged to have occurred for the purpose of watching what he denominated "jazz parties" who were out from San Antonio along the road in question; that while he and his companions were concealed along the road they heard a commotion some distance from them and shortly thereafter a car passed where they were concealed, that later on he was shot and apprehended by a military officer, his companions escaping. He testified positively that the woman in company with Lowrey at the time they met on the road after the arrest failed to identify appellant as one of the robbers, stating that he did not look like the party who had the gun. The woman was not a witness in the case and was not present in court.

The record contains only one bill of exception. It recites that after Lowrey had testified that he had been held up and robbed by three men, and that about thirty minutes thereafter he had identified appellant as one of them, and after he had identified appellant on the trial as one of the robbers and as the one who held the pistol on him at the time, and after he had testified that the lady in company with him (Lowrey) saw the three men who committed the robbery and was in a position to pass upon their identity as well as the witness Lowrey and was with him (Lowrey) at the time he was called upon to identify appellant shortly after the robbery, appellant propounded the following question to said Lowrey: "What is the name and present address and whereabouts of the lady that was with you at the time of the robbery and at the time you were called upon to identify the defendant?" This question was objected to by the state on the ground that it was immaterial and the objection was sustained. The bill further recites that if the objection had not been sustained and the witness had been permitted to answer the question that appellant would have proved by Lowrey the name of the lady and that she resided at the time within the corporate limits of San Antonio and within the compulsory process of the court; and further would have proven by said Lowrey that when she was called upon to identify appellant in the presence of said lady that the lady not only failed and refused to identify appellant as one of the robbers, but stated at the time and in the presence of Lowrey that appellant was not one of the parties and did not resemble either of the robbers. The bill further recites that said lady was not known to appellant or his counsel, was not present in court at the time, and would not attend court and testify without compulsory process of the court.

Upon a casual examination of the bill we were under the impression that it presented complaint at the court's refusal to compel Lowrey to divulge the name and address of the lady with him at the time of the robbery, thereby depriving appellant of the benefit of her evidence. This would have presented a serious question. But a closer examination of the bill reveals that such is not the complaint. It nowhere recites that the lady, if present in court, would testify that appellant was not one of the robbers. It complains only at the action of the court in not forcing Lowrey to give the name and address of the lady; and further recites that if he had been compelled to do so, he (Lowrey) would have testified that she failed to identify appellant as one of the robbers. Such answer would not have been called for nor responsive to the question set out in the bill. It is nowhere shown in the bill that any questions were propounded to Lowrey calling for answers which would have contained information relative to the lady's identification, or otherwise, of appellant. The bill, therefore, does not present error. By reference to the statement of facts we find that Lowrey was interrogated upon this point by appellant and the following statements elicited from him:

"There was a lady with me at the time I was called on to identify this man. I don't remember distinctly whether this lady was called upon to identify this man, and I do not remember whether she was asked to identify the man or whether she was asked anything or not. * * * I can't answer. I don't know whether the lady was asked to identify him."

Appellant discusses in his brief an alleged error in permitting the state to prove by other witnesses that Lowrey identified appellant soon after the robbery. This matter is not brought forward by bills of exception, and therefore cannot be considered.

The record calls for an affirmance, and same is ordered.

Affirmed.

ON REHEARING. June 13, 1923.