Bond v. State

20 Tex. Ct. App. 421, 1886 Tex. Crim. App. LEXIS 63

• Court: Court of Appeals of Texas
• Decided: February 27, 1886
• Docket: No. 1930
• Status: Published

Opinion

ON MOTION FOB REHEARING.

White, Presiding Judge.

At a former day of this present term this case was reversed and remanded for a supposed error in the charge of the court, occasioned by inadvertence upon our part in overlooking the full extent to which the act of April 12, 1883 (Geni. Laws, 18th Legislature, Regular Session, page 81), had gone in the amendment made to article 722 of thé Penal Code, defining and punishing the crime of robbery.

This amendment reads: “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 punished by confinement.in the penitentiary for life or for a term of not less than five years; and when the offense is committed by two or more persons acting together, and a fire-arm or other deadly weapon is used or exhibited by either of them in commission of the offense, the person or persons so using or exhibiting the fire-arm or other deadly weapon shall be punished by imprisonment in the penitentiary for life or for a term not less than five years.” This amendment changes the old law definition of the offense in one important particular, to wit: by using the disjunctive “ or ” where the conjunctive “and” had formerly been used between the words “violence” and the words “ by putting in fear of life or bodily injury.”

This is the second time the definition of the offense has been changed since the adoption of our Codes in 1858. Originally it was “ by assault or by violence, and putting in fear of life or bodily injury,” and the proper construction then was that whether “ by assault” “or by violence,” in either event there must be the accompanying condition that there was a “puttingin fear of life or bodily injury,” and the indictment was required so to allege. ( Wilson v. The State, 3 Texas Ct. App., 63.) Next came the change made by the revision of 1879, which was that if the property was taken by assault the offense was complete whether the person from whom taken was or not put in fear of life or bodily injury; whilst, if it was taken “ by violence,” then, to make the crime complete, it was requisite that the “violence” ^should be such as amounted to a “putting in fear of life or bodily injury,” and “ violence” not thus accompanied could not constitute the offense. (Williams v. The State, 12 Texas Ct. App., 240; Kimble v. The State, 12 Texas Ct. App., 420; Trimble v. The State, 16 Texas Ct. App., 115.) Under these previous laws there were two modes by which the offense might be committed, that is, 1st, “ by assault,” and 2d, “ by violence,” the putting in fear, etc., being a condition annexed to the latter mode before article 722 was amended as above set out.

We think it clear from the amendment that the legislative intent, by the use of the disjunctive “or” between “violence” and “putting in fear,” etc., was to create another, and established thereby' three modes by which the offense might thereafter be committed; — viz.: 1st, by assault; 2d, by violence; and 3d, by putting in fear of life or bodily injury, each being a separate and distinct mode within itself, whether connected and accompanied or not by either of the other two modes.

It is true that by a well known rule of construction, where the legislative intent and meaning is plain, exact grammatical propriety of language may be disregarded and the conjunctive “ and ” will be read as “or,” and “or” as “and,” when the sense obviously so requires; and this in plain cases, even in criminal statutes, against the accused. (Bish. Stat. Crimes (2d ed.), § 243; Frazier v. The State, 18 Texas Ct. App., 434.) Such liberty is, however, unauthorized when the words used appear to harmonize with the evident intention as expressed by them. We are of opinion that the Legislature intended to make three modes instead of two by which robbery could be committed, and that “ violence ” is of itself one mode, without the aid of either of the others. The learned trial judge so in effect charged the jury in the paragraph upon which we based the former reversal of the judgment. We are clearly of opinion that his charge was in strict conformity with the amendment of the law, and that the error with regard to the law as to this phase of the case rvas one of our own and not his.

The previous judgment reversing the case will therefore be set aside, and we will proceed to dispose of the other questions submitted by appellant as grounds for reversal.

1. In so far as defendant’s special requested instructions presented sound propositions of laAv, they were covered by the charge of the court to the jury, and it wTas not error to refuse them.

2. The application for continuance on account of the Avitness Kissinger Avas properly overruled. Sufficient diligence is not shown. Defendant’s second subpoena for said witness was returned on the 14th “not found;” the trial was on the 24th, and no steps were taken by defendant for the ten days intervening between the 14th and 24th to secure the attendance of his witness. In addition to this want of diligence, we are of opinion that the matter proposed to be proven by said witness, when the evidence adduced is considered, would not probably have been true had the witness testified to the same.

3. Defendant’s second bill of exceptions shows that “ the rule ” had been invoked for the witnesses, and, when they were called for the purpose of being sworn and placed under the rule, the State’s attorney called John Bond, a brother of defendant, who had not been summoned as a witness for either side, and requested that he also be sworn and put under the rule with the other witnesses for the State. Defendant’s counsel requested the court to ask State’s counsel if he intended to use John Bond as a witness, and, if not, that defendant wished him released from the rule so that he might have this witness’s' assistance on the trial. The State’s counsel, after a wordy altercation between the attorneys about the witness, finally told the court that he might wish to use the party as a witness, and the court had him placed under the rule with the other witnesses, over defendant’s objection and in refusal of his request to have him remain in the court room to assist by his advice in the conduct of the defense.

A wide discretion is confided necessarily in the trial judge with regard to the application and the extent of the application of “ the rule” to witnesses, and the exercise of this discretion will not be revised except in clear cases of abuse. (Kennedy v. The State, 19 Texas Ct. App., 640, where the authorities are collated.) “ The order for the removal of the witnesses from the court, being a matter within the discretion of the presiding judge, may be put in such form as to meet the particular demands of justice and convenience in the individual case. If, for example, the assistance of some of the witnesses is required in conducting the prosecution or defense, these may be permitted to remain while the rest are excluded. So the witnesses who are summoned as experts, and an attorney in the cause, and witnesses called to testify to the character for truth and veracity of a witness, may all be permitted to remain in the court room while the rest are sent away.” (Brown v. The State, 3 Texas Ct. App., 295; 1 Bish. Crim. Proc. (3d ed.), §§ 1188-1190; Code Crim. Proc., art. 662.)

It is not made to appear that the court abused its discretion in this instance, and the bill of exceptions fails to show any reason why the witness John Bond was even supposed to be indispensable to defendant in his defense of the case, further than that he was a brother of defendant.

4. The prosecuting witness was asked by the State’s counsel the question “ are you a farmer? ” and defendant’s counsel objected that the character nor trade nor business of the witness were not in issue, and that the answer would be immaterial and irrelevant. The objection was overruled. If the question and answer were, as contended, inadmissible, which is not conceded, then we cannot see what possible injury could result to defendant, and it would simply amount to error without prejudice, which is not reversible error. The erroneous admission of evidence is no ground for reversal when the appellant could not have been prejudiced by the evidence admitted. (State v. Hallett, 63 Iowa, 259; Evans v. The State, 13 Texas Ct. App., 225; Gose v. The State, 6 Texas Ct. App., 121.)

5. A somewhat similar objection is shown by the fourth bill of exceptions, and, though the question may have been irrelevant and immaterial, we cannot see how injury could inure to the defendant.

6. We cannot see how the question asked the policeman Kelley, “if he arrested the defendant?” was “calculated to influence the jury to accept the opinion of the police as to who had committed the offense.” If this is the rule with regard to such a question, then the State would never be able to prove, no matter how important, who had, or which one of her officers had, made an arrest of a party who had committed a crime. We think the objection was a strained conclusion as to what would necessarily be the result of the question and answer. Of course an officer would hardly be presumed to arrest a party for crime unless he had a warrant which authorized him to do so, or had seen him commit the crime, or had good reason to believe that he had committed it. The very fact of arrest is ordinarily evidence that, in the opinion of some one, the arrested party has committed an offense. But there would be about as much reason in objecting to an indictment’s being read in the hearing of the jury, for fear they might be influenced by the opinion of the grand jury as to the guilt of the accused. And yet it is a matter of daily experience that parties are not only arrested but may be also indicted for crime, and juries, uninfluenced by the opinions of officers and grand jurors as thus evinced, find them not guilty without the slightest hesitancy.

7. On the argument about one of the exceptions saved by counsel for defendant, and what it should contain, counsel remarked to the court “all that defendant wants is that the record speak the truth as to what has transpired, and that defendant have his rights and be awarded a fair trial; ” when the court rejoined, “ it does not seem that way to me or there would not be all this wrangling.” This was said in presence of the jury. “ The court explained to the jury that in using said language he intended to convey the idea and meant that he thought the attorneys for defendant were trying to get some technical advantage in the case,” and defendant’s counsel excepted to the explanation as well as to the original remark.

The remark of the judge was doubtless provoked by the manner of counsel in making his remarks. Still, this did not justify the reply of the court that it did not seem to him that defendant only wanted the record to speak the truth and that he have a fair trial, or there would not be so much wrangling. That was not the proper or legal manner for the court to express disapprobation at or to stop the wrangling. On the contrary, it looks very much as if the court felt disposed to engage in the wrangling himself,— a course of conduct a court should never suffer itself to be entrapped into, and’ especially so when it has ample power and authority by fine and imprisonment, if need be, to control and stop all unnecessary “ wrangling,” or disorders of any other kind which are violations of proper decorum or calculated to impede or obstruct the trial of a cause. The remark of the court was, to say the least, inconsiderate if not improper; and the explanation made to the jury of the remark was, in our opinion, much more objectionable and improper than the remark itself, because it was a charge that the attorneys were endeavoring, in their effort to get a bill of exceptions, to obtain some technical advantage in the trial. They were, either entitled to the bill or they were not, and it was the duty of the judge either to allow or refuse it, just as the right of the matter might be, without discussing the motives which prompted counsel in asking its allowance. It is a right given by law to a party to reserve exceptions to any adverse ruling he may deem erroneous; and no right accorded a party by law, especially in a criminal prosecution, is in any manner a technical right or advantage when properly availed of. The rules provided by the State for the government of criminal trials, when she seeks to hold her citizen amenable, are not technicalities if he insists upon a compliance with them on the part of the State. They are rights, and it is the veriest misnomer to call them technicalities. There are no technicalities in criminal law under a Code practice, where every step of the procedure is clearly provided for and defined. Erroneous remarks of a judge in the presence of the jury may, and sometimes do, demand a reversal of the judgment rendered (61 Iowa, 369), and judges cannot be too careful in making remarks having the slightest tendency to impress the jury with the opinion the judge may entertain of the merits or demerits of the case or any matter of evidence upon which the jury alone should pass. But, whilst we hold that the remark and explanation in this instance were highly objectionable and improper, we cannot say that in and of themselves they afford ground sufficient to call for a reversal of the judgment.

8. The witness Blain was asked “ if any one informed defendant of the cause of his arrest?” and he answered “yes, B. H. Pierce (the prosecuting witness) said there are the two men that robbed me last night”—pointing to defendant and George Leonard. It was objected that this was hearsay. If we understand the exception, the evidence was not hearsay; the statement of Pierce was made to defendant. But if hearsay and erroneous, the error is harmless because Pierce, when on the stand, had testified substantially to the same fact, and stated that he had identified the defendant and Leonard when brought by the police to him at the mayor’s office.

9. In answer to the question propounded to the witness and objected to in the eighth bill of exceptions, the witness answered that “he did not know,” and, whilst the question may have been improper or illegal, it does not appear to have injured defendant, as the witness did not and could not answer it.

10. Bill of exceptions number ten has reference to the action of the court in placing John Bond back under “the rule” after he had testified, and refusing to allow him to remain in the court room to advise and counsel with defendant and his attorneys about the case. For the reasons stated above with regard to the third bill of exceptions, we hold that this bill does not show reversible error.

11. Bill of exceptions shows no reversible error. In answer to the question “ what was defendant’s business ? ” the witness answered that “defendant painted, but he did not know his business.” The witness was also asked if Kissinger (the witness for whom defendant had sought a continuance) was present when defendant was on his examining trial, and if so, whether he, Kissinger, testified; and witness answered that Kissinger was present and did not testify.

12. Bill of exceptions is a rehash of defendant’s thrice told tale of the injustice done him by depriving him of the presence, assistance, advice and counsel of his brother, John Bond, and the keeping of him under the rule during the trial.

13. The judge’s explanation to the twelfth bill of exceptions is that the court stopped the county attorney in his remarks about the non-production by defendant of the witness Kissinger on the trial, and informed the jury that defendant had applied for a continuance on account of the absence of Kissinger. This certainly should have corrected any improper impression the county attorney was seeking to make on account of Kissinger’s absence, and was the proper course, if not the only one the court could take in the matter.

14. This last bill of exceptions is one saved by the county attorney to the ruling of the court in excluding evidence of the confessions made by defendant whilst he was in jail. The question presented is quite an interesting one, but we do not see what the county attorney wanted with these confessions when he had ample evidence without them, or why he should wish us to decide it when it is unnecessary to a disposition of the case. However, without going into the merits of the matter, we deem it sufficient to state that in this particular we see no error in the ruling of the court.

We have discussed every bill of exceptions and every point of any moment presented in this record. Learned counsel for appellant in an able printed brief have done themselves much credit by the manner in which they have presented their views upon many of these points; and on the motion for a rehearing in connection with their argument they have most earnestly requested that we would examine and decide each question raised by them if the rehearing was granted. We have endeavored to do so, and our conclusion is that no ground assigned as error and no question submitted on the record presents reversible error; wherefore the judgment is affirmed.

[Opinion delivered February 27, 1886.]

Affirmed.