Land v. State , 34 Tex. Crim. 330 ( 1895 )

The appellant in this case was tried and convicted in the Criminal District Court of Dallas County for the offense of robbery, and his punishment assessed at confinement in the penitentiary for twenty-five years, and from the judgment and sentence he prosecutes this appeal.

The appellant complains, that the sheriff carried the defendant, shortly after the alleged robbery, before the witnesses J.N. Gillock, Mrs. Stella Gillock, and Mrs. Mary Ogden, for the purpose of identification, and that they identified him; and said witnesses were permitted, over the objections of the defendant, to testify as to his being the same person whom they saw near the place of the alleged robbery on the evening of the same day, and a short time before it occurred. The contention of the appellant is, that he was thus compelled to make testimony against himself. It is not shown in the bill of exceptions that the defendant was compelled to go before said witnesses by the sheriff, but, to all appearances, he went voluntarily and of his own accord. If, however, it be conceded that defendant was forced to go with him by the sheriff, still it does not follow that the testimony of the witnesses, who were thus enabled to see and identify him as the person whom they saw on the evening of the robbery near the place where it was committed, was thus rendered inadmissible. No word or utterance of the defendant is shown to have occurred at the time, or of even the sheriff himself, as inducive to their identification of defendant; and the only fact that appears is that the witnesses, by the defendant's being brought there, were thus afforded an opportunity of seeing him. Had the witnesses themselves been carried to the jail and shown the defendant, they would have had the same opportunity to have seen him, and perhaps with more inducement or suggestion as to his identification. There was no error in permitting this testimony to be introduced. Fulcher v. The State, 28 Texas Crim. App., 465; Bruce v. The State, 31 Tex.Crim. Rep..

It is also contended by the appellant, that the court erred in permitting the sheriff, Cabell, to testify, that he found the masks and slickers alleged to have been worn by the parties committing the robbery concealed in a certain place, and that he had been told by witness Winfrey that they were concealed at said place, and that he found them in pursuance of said information. The appellant says that this is hearsay, and in view of the fact that Winfrey, an accomplice, testified against him, that his testimony was the most material evidence against defendant, and that under the charge of the court said witness had to be corroborated by other testimony tending to connect the defendant with the robbery, that the jury were liable to regard the testimony of Cabell as independent evidence, corroborating said Winfrey, and tending to connect the defendant with the commission of the offense charged. The witness Winfrey was an accomplice in the robbery, and if he himself had been on trial, and had made such declarations to the sheriff, they would have been admissible against him; and if it was shown that the robbery was in pursuance of a conspiracy between him and the appellant, all his declarations made pending the conspiracy, and up to and including the consummation of the robbery, would have unquestionably been admissible against both himself and his coconspirator. But these were declarations made long after the perpetration of the robbery, and, in our view, were not strictly admissible in this case. The question, however, for us to consider in this case, in view of the evidence, is, was the admission of this testimony calculated to prejudice the rights of defendant? The two parties who were robbed testified, that the two persons doing the act wore slickers and masks of a certain description. Winfrey testified, as he was authorized to do, that he and appellant wore slickers and masks of the same description as testified to above, and described the route they took in coming from the scene of the robbery, and where they concealed the slickers and masks. The sheriff also testified, as he was authorized to do, that in the vicinity of the robbery, and on the route of the parties committing it back towards town, he found the slickers and masks concealed which answered the description given by the other witnesses, and were identified by the witness Winfrey. All this testimony was clearly admissible, and, moreover, it would have been permitted for the sheriff to state that he had found the slickers and masks in pursuance of information that he had received. While it may be conceded that the statement made to Cabell by the witness Winfrey, to the effect that they had concealed the slickers and masks at a certain place, describing the place, was not admissible testimony, as being hearsay, yet we fail to see how such a statement, under the circumstances, could have operated to the prejudice of defendant. The contention of the defendant, that said testimony was calculated to mislead the jury into the view that the finding of the goods by Cabell in the place where secreted, as stated to him by Winfrey, corroborated the witness Winfrey in a material fact, tending to connect the defendant with the robbery, we do not think tenable. In our opinion, it could have no more effect in this regard than the finding of the goods by the sheriff, where they were secreted, in the absence of any statement on the part of Winfrey.

When this case was called for trial, it appears that two witnesses, to wit, Mrs. Mary Ogden and her granddaughter, Miss Jimmie Burton, who had been summoned by the State, were not present, and the defendant objected to proceeding without their presence, as he stated he would require their testimony in his defense, whereupon the county attorney stated that the witnesses had been subpoenaed, and would be present. The court sanctioned his statement, and stated that their attendance would be enforced, and they would be compelled to appear as witnesses in this case. About this time the said two witnesses made their appearance in court, and were sworn and placed under the rule with the other witnesses. During the further progress of the trial, the witness Jimmie Burton, who was placed on the stand as a witness on behalf of the State, before she had answered any questions began crying, and said she was sick and could not testify. Thereupon, with the sanction of defendant, she was excused by the court, and instructed to go with her grandmother into the court's private office pending further proceedings. The further examination of the witnesses was proceeded with on the part of the State until the hour of adjournment for the day. On the next morning the examination of the witnesses was resumed, and after the State announced that it rested, the defendant demanded that the witness Jimmie Burton be produced and put on the witness stand for examination. The State's counsel then said witness was still sick, and had gone home on the evening before, after she left the witness stand; and the State's counsel here offered to submit to the jury the facts that both State and defendant expected to prove by said witness, which offer the defendant's counsel refused to accept. The defendant then presented a motion to postpone or continue the case until said witness Jimmie Burton could be produced, so that the defendant could have the benefit of her testimony on the trial. The defendant stated in that connection, that he expected to prove by said witness that she was present at the well near the house of Mrs. Mary Ogden when the witness Mary Ogden was present, and who testified in this case that she then identified the defendant as one of the two men who were present at said well on the evening of the robbery, a short time before it occurred — said well being about 100 yards from the place of its commission — and that by the said witness defendant expected to prove, that appellant was not one of the two men who were at the said well at said time, and further, that before this trial, after the defendant had been arrested and placed in jail, said witness was brought to the jail for the purpose of identifying the defendant as one of the two men, and that she then and there stated that he was not one of the men. The court overruled the motion of the appellant to postpone or continue said case for the evidence of said witness. The defendant excepted.

The defendant also urged the same ground in his motion for a new trial of the case, which being overruled, he excepted thereto. And the defendant now assigns this action of the court as a ground for reversing this case. Article 568, Code of Criminal Procedure, provides for the continuance of a case after the trial has commenced: "In such case it must be made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial can not be had. The trial may be postponed to a subsequent day of the term, or continued." It appears from the record in this case that the defendant sought to avail himself of the above provision. It is not made to appear, however, that the defendant had ever sued out process for said witness Jimmie Burton, nor is it shown that he desired the evidence of said witness until at the very threshold of the trial; and moreover, when he asked for a postponement or a continuance of the case, he did not then ask for process to compel the attendance of the witness, although it was shown that she lived near by. But admiting the defendant used proper diligence, as he was authorized to avail himself of the State's process, the question then presents itself, was he entitled to a new trial on account of the absent testimony? The rule, as we understand it, is as follows: "It is not in every case, however, even where the absent testimony is material and probably true, that this court would revise the trial judge in refusing a new trial considered with reference to the application for the continuance. It is only in a case where, from the evidence adduced upon the trial, we would be impressed with the conviction not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted." Pruitt v. The State, 30 Texas Crim. App., 156. In McAdams v. The State, 24 Texas Criminal Appeals, 86, following Hollis v. The State, 9 Texas Criminal Appeals, 643, this rule is stated: "If there is such a conflict between the inculpatory facts and those stated in the application as to render it impossible that the facts stated in the application are material, and probably true, the continuance should be refused. There must, however, not only be such a conflict, but the inculpatory facts must be so strong and convincing as to render the truth of the facts set forth in the application improbable."

Taking into consideration the legal principles here stated, as the correct rule, let us look to the salient features of the testimony in this case, in order to ascertain whether there was error in the court's refusing to postpone or continue said cause. Frank Daniel, one of the parties robbed, in his testimony, identified the defendant as one of the robbers. Both of the Daniels, witnesses in this case, identified the slickers and the masks that the robbers had on, and that were subsequently found on the track the robbers took towards town after the robbery. A number of witnesses identified the defendant, Land, whom they personally knew, in the vicinity of the robbery — some of them, not more than 100 yards from the place of its commission, on the evening of the robbery, a short time prior thereto. This was an unusual place for the defendant to be, as his business was in town, he being a hackman. He was seen on the same evening after the robbery, with Winfrey, between the scene of the robbery and the town of Dallas, on his way back. Witness Winfrey fully details all the circumstances of the robbery, showing what he and the defendant did from its beginning to its end, and his testimony is corroborated in a number of material respects. Now, the testimony for which the continuance was asked was that of Jimmie Burton, by whom it was proposed to prove, that she was at the well near Mrs. Ogden's when the two men came up in the evening before the robbery, and got some water, and that the defendant was not one of the men. This testimony would have been in rebuttal of the evidence of the witness Mary Ogden, who testified that defendant was one of the men. If the testimony of Mary Ogden is eliminated from this case entirely, still the evidence is abundantly sufficient to sustain the conviction in this case. So, applying the rules above stated to the evidence for which the continuance was asked in this case, and conceding that the testimony of the witness Jimmie Burton was material and probably true, it would only show that defendant was not at the well where Mrs. Ogden testifies he was on the evening of the alleged robbery, and it would not prove that defendant was not at other places in the vicinity of the robbery a short time prior thereto; and in our opinion it is not reasonably probable that, if such absent testimony had been before the jury, it would in any way have affected the result. While the evidence was in conflict with some of the inculpatory facts offered by the State, yet the inculpatory facts in this case are so strong and convincing as to render the truth of the facts set forth in the application improbable, and the court did not err in overruling the application. In this same connection, with reference to the testimony of Jimmie Burton that she was carried to the jail, and there saw the defendant, and stated that he was not one of the men whom she saw at the well, it is not made to appear who it was that carried her to the jail. We take it for granted that she must have been conducted into the jail by the sheriff, or some of his deputies, and the testimony of such witness or witnesses, that she stated that the defendant was not one of the men whom she saw at the well, could have been offered by the appellant as original testimony, and yet it is not shown that any effort was made to procure such testimony. Ruston v. The State, 4 Texas Crim. App., 432; Hester v. The State, 15 Texas Crim. App., 568; Bruce v. The State, 31 Tex. Crim. 592. We would further observe, that the defendant should have shown by his bill of exceptions that this was his first application. This he failed to do. See Arnold v. Hockney,51 Tex. 46. In this regard there is a difference between first and second applications for continuance, it being incumbent for defendant to show on a second application that he could not procure any other testimony of the occurrence at the jail than that of the witness Jimmie Burton, for whom the continuance was asked. He should have done this in order to have brought himself within the rule of law authorizing a continuance.

Other matters complained of by appellant we deem it unnecessary to discuss.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.