MORROW, Presiding Judge.
The appellant was convicted for robbery. The opinion on the former appeal is reported in the 85 Texas Criminal Reports, page 661.
On the present trial-, the appellant did not testify. The description of the robbery given by Ramey, the injured party, and the accomplice Beam, are in substantial accord save that Ramey was unable to identify either of his assailants except the woman who was his companion.
Beam testified that it was his wife who was with Ramey; that through her he learned of the possession of the money by Ramey and the contemplated trip, and with them planned the robbery, the appellant agreeing to act with them; that he, in an Overland five-passenger car driven by Boone, followed Ramey and the woman. They passed through Washburn, through Claude, and drove on the Ozark Trail in the direction of Fort Worth through Goodnight, where they stopped for gasoline, and then east to the Denver Railroad. They cut across and got ahead of the other car; stopped the car and waited until Ramey . and the woman arrived, and then committed the robbery. After the robbery, Boone drove his car preceding Ramey and the woman and Beam, the latter riding on the running-board, and proceeded to take Ramey to a place off the road where he was tied and left, both cars passing the ranch house with Boone in the lead in returning; and upon reaching the point near Groom, they separated, Boone going north and then west to Amarillo, and Beam and his wife going east through Groom. Beam and his wife and niece came to Amarillo from a distant point in an automobile, and in route agreed to commit the robbery. After reaching Amarillo he met Boone and became acquainted with him. He described several meetings with Boone during his stay in Amarillo prior to the robbery and described several plans for the robbery which had been found inexpedient and were abandoned. They
left Amarillo on the day of the robbery at about 2:30 in the evening.
A bill is presented complaining of the remarks of counsel who stated that “if he were accused of an offense of robbery and had been tried once and was on trial again for the offense that he would feel that he should give the jury the benefit of all his movements on the day of the robbery and that ‘they’ (meaning the defendant and his counsel) hadn’t done it.” This is claimed to have violated the statute prohibiting reference in argument to the failure of the accused on trial to testify.
The statute, Article 790, Code of Criminal Procedure, does not prohibit the comment in argument upon the failure of the accused or his counsel to produce evidence. It does prohibit counsel in argument to allude to or comment upon his failure to testify. The plain import of the statute is that counsel for the State, in argument, must refrain from making use of the silence of the accused during his trial against him by direct or indirect means. This statute does not deprive the State’s counsel of making, in argument, legitimate use of the evidence or of the absence of evidence. Wilkerson v. State, 57 S. W. Rep., 961; Henry v. State, 54 S. W. Rep., 594; Green v. State, 31 S. W. Rep., 386; Parker v. State, 39 Texas Crim. Rep., 265, 45 S. W. Rep., 812; Matthews v. State, 41 Texas Crim. Rep., 98, 51 S. W. Rep., 915; Branch’s Ann. Tex. Penal Code, Sec. 373.
An indirect comment upon the failure of the accused to testify is quite as hurtful as a direct one, and this court has often held that the consequences of the violation of the statute were not to be avoided by the adroitness of counsel in selecting indirect rather than direct means of disregarding it. See Miller v. State, 45 Texas Crim. Rep., 517; Brazell v. State, 33 Texas Crim. Rep., 334; Branch’s Ann. Tex. Penal Code, Sec. 374.
The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence to which remarks may reasonably have been applied by the jury, the statute is not transgressed. Jackson v. State, 31 Texas Crim. Rep., 342; Arnold v. State, 38 Texas Crim. Rep., 7; Nite v. State, 41 Texas Crim. Rep., 352; Gallegos v. State, 49 Texas Crim. Rep., 116; Huff v. State, 103 S. W. Rep., 395; Bagley v. State, 53 Texas Crim. Rep., 324; Walker v. State, 65 Texas Crim. Rep., 615, 145 S. W. Rep., 904; Bruce v. State, 53 S. W. Rep., 868; Sample v. State, 52 Texas Crim. Rep., 505; Reinhard v. State, 52 Texas Crim. Rep., 63; Wooten v. State, 50 Texas Crim. Rep., 151; Jones v. State, 85 Texas Crim. Rep., 458.
Illustrating the application of this rule, the case of Vickers v. State, 69 Texas Crim. Rep., 628, is useful. The case was one of incest with Ollie Walston, and the following language was used:
“They tell you the prosecuting witness has not been corroborated— they will tell you no one saw the act of intercourse except the two (prosecutrix and defendant). ’Tis true that no one was present at the act of intercourse but these two; ’tis true that Ollie.Walston testifies that no one was present when the defendant told her to take the turpentine except herself and the defendant, but gentlemen, she has testified to both of these transactions, and they have not dared to put a witness on the stand to contradict her testimony in any particular.”
It is obvious from the quotation that contradiction demanded could come from no source save the accused. The court held and wisely held that the statute was impinged.
The case of Jackson v. State was one for theft of money. In argument counsel said:
“I say they have not proved that the money was Drew’s money. Why have they not had Drew’s family here, and the other witnesses, to prove that the money was Drew’s money? Don’t you know that counsel appreciates the importance of the evidence, and if the money was Drew’s money, they ought to have had their witnesses here to prove it? And nobody has testified to this jury that the money belonged to defendant, and he has never claimed it since the sheriff took it from him.”
The argument was held legitimate. Many like illustrations are available.
The Wooten case, in which the language used and held not to be against the rule, was as follows:
“Here is another circumstance: those heelless shoes. How have they undertaken to rebut that evidence offered here by the State? They failed to offer any testimony explaining, and we challenge them to explain. Those tracks leading from where that sack was found in the water up to the door of his house. How do they explain that stove-door and smoothing-iron found in the sack? Now, do they undertake to rebut that evidence?”
Gallegos case where the language used was:
“Where was the defendant and'his brother Elijio on the night that Antonio Montoya was murdered? Defendant is a married man, with a wife and children. Why does he not show where he ate his supper on that night? Why does he not show where he slept on that night? Again, I ask where was he on that night? Defendant has friends.
Free access — add to your briefcase to read the full text and ask questions with AI
MORROW, Presiding Judge.
The appellant was convicted for robbery. The opinion on the former appeal is reported in the 85 Texas Criminal Reports, page 661.
On the present trial-, the appellant did not testify. The description of the robbery given by Ramey, the injured party, and the accomplice Beam, are in substantial accord save that Ramey was unable to identify either of his assailants except the woman who was his companion.
Beam testified that it was his wife who was with Ramey; that through her he learned of the possession of the money by Ramey and the contemplated trip, and with them planned the robbery, the appellant agreeing to act with them; that he, in an Overland five-passenger car driven by Boone, followed Ramey and the woman. They passed through Washburn, through Claude, and drove on the Ozark Trail in the direction of Fort Worth through Goodnight, where they stopped for gasoline, and then east to the Denver Railroad. They cut across and got ahead of the other car; stopped the car and waited until Ramey . and the woman arrived, and then committed the robbery. After the robbery, Boone drove his car preceding Ramey and the woman and Beam, the latter riding on the running-board, and proceeded to take Ramey to a place off the road where he was tied and left, both cars passing the ranch house with Boone in the lead in returning; and upon reaching the point near Groom, they separated, Boone going north and then west to Amarillo, and Beam and his wife going east through Groom. Beam and his wife and niece came to Amarillo from a distant point in an automobile, and in route agreed to commit the robbery. After reaching Amarillo he met Boone and became acquainted with him. He described several meetings with Boone during his stay in Amarillo prior to the robbery and described several plans for the robbery which had been found inexpedient and were abandoned. They
left Amarillo on the day of the robbery at about 2:30 in the evening.
A bill is presented complaining of the remarks of counsel who stated that “if he were accused of an offense of robbery and had been tried once and was on trial again for the offense that he would feel that he should give the jury the benefit of all his movements on the day of the robbery and that ‘they’ (meaning the defendant and his counsel) hadn’t done it.” This is claimed to have violated the statute prohibiting reference in argument to the failure of the accused on trial to testify.
The statute, Article 790, Code of Criminal Procedure, does not prohibit the comment in argument upon the failure of the accused or his counsel to produce evidence. It does prohibit counsel in argument to allude to or comment upon his failure to testify. The plain import of the statute is that counsel for the State, in argument, must refrain from making use of the silence of the accused during his trial against him by direct or indirect means. This statute does not deprive the State’s counsel of making, in argument, legitimate use of the evidence or of the absence of evidence. Wilkerson v. State, 57 S. W. Rep., 961; Henry v. State, 54 S. W. Rep., 594; Green v. State, 31 S. W. Rep., 386; Parker v. State, 39 Texas Crim. Rep., 265, 45 S. W. Rep., 812; Matthews v. State, 41 Texas Crim. Rep., 98, 51 S. W. Rep., 915; Branch’s Ann. Tex. Penal Code, Sec. 373.
An indirect comment upon the failure of the accused to testify is quite as hurtful as a direct one, and this court has often held that the consequences of the violation of the statute were not to be avoided by the adroitness of counsel in selecting indirect rather than direct means of disregarding it. See Miller v. State, 45 Texas Crim. Rep., 517; Brazell v. State, 33 Texas Crim. Rep., 334; Branch’s Ann. Tex. Penal Code, Sec. 374.
The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence to which remarks may reasonably have been applied by the jury, the statute is not transgressed. Jackson v. State, 31 Texas Crim. Rep., 342; Arnold v. State, 38 Texas Crim. Rep., 7; Nite v. State, 41 Texas Crim. Rep., 352; Gallegos v. State, 49 Texas Crim. Rep., 116; Huff v. State, 103 S. W. Rep., 395; Bagley v. State, 53 Texas Crim. Rep., 324; Walker v. State, 65 Texas Crim. Rep., 615, 145 S. W. Rep., 904; Bruce v. State, 53 S. W. Rep., 868; Sample v. State, 52 Texas Crim. Rep., 505; Reinhard v. State, 52 Texas Crim. Rep., 63; Wooten v. State, 50 Texas Crim. Rep., 151; Jones v. State, 85 Texas Crim. Rep., 458.
Illustrating the application of this rule, the case of Vickers v. State, 69 Texas Crim. Rep., 628, is useful. The case was one of incest with Ollie Walston, and the following language was used:
“They tell you the prosecuting witness has not been corroborated— they will tell you no one saw the act of intercourse except the two (prosecutrix and defendant). ’Tis true that no one was present at the act of intercourse but these two; ’tis true that Ollie.Walston testifies that no one was present when the defendant told her to take the turpentine except herself and the defendant, but gentlemen, she has testified to both of these transactions, and they have not dared to put a witness on the stand to contradict her testimony in any particular.”
It is obvious from the quotation that contradiction demanded could come from no source save the accused. The court held and wisely held that the statute was impinged.
The case of Jackson v. State was one for theft of money. In argument counsel said:
“I say they have not proved that the money was Drew’s money. Why have they not had Drew’s family here, and the other witnesses, to prove that the money was Drew’s money? Don’t you know that counsel appreciates the importance of the evidence, and if the money was Drew’s money, they ought to have had their witnesses here to prove it? And nobody has testified to this jury that the money belonged to defendant, and he has never claimed it since the sheriff took it from him.”
The argument was held legitimate. Many like illustrations are available.
The Wooten case, in which the language used and held not to be against the rule, was as follows:
“Here is another circumstance: those heelless shoes. How have they undertaken to rebut that evidence offered here by the State? They failed to offer any testimony explaining, and we challenge them to explain. Those tracks leading from where that sack was found in the water up to the door of his house. How do they explain that stove-door and smoothing-iron found in the sack? Now, do they undertake to rebut that evidence?”
Gallegos case where the language used was:
“Where was the defendant and'his brother Elijio on the night that Antonio Montoya was murdered? Defendant is a married man, with a wife and children. Why does he not show where he ate his supper on that night? Why does he not show where he slept on that night? Again, I ask where was he on that night? Defendant has friends. Why does he not introduce witnesses to establish his whereabouts on that night ?”
In the Nite case (41 Texas Crim. Rep., 352) in which there was a conviction for homicide committed in perpetration of a bank robbery, the court said:
“There was no error of counsel in his argument alluding to the fact that defendant, had not explained where he was on May 23, 1894, at the time the bank was robbed. It was no allusion to bis failure to testify.”
In the case before us, the evidence showed that the appellant resided in the city of Amarillo; that he had associates and business connections there; that he was there at the time of his arrest after the robbery. It was in evidence that he had been previously tried for the same offense. He relied on an alibi. We are not in accord with' his contention that in the use of the language which we have quoted, from his bill of exceptions, the State’s attorney did violence to the statute prohibiting the reference of the failure of the accused to testify. To sanction this view, it would be necessary to assume that the whereabouts of the appellant on the day of the robbery were known to no one but himself. Such an assumption does not arise from the evidence, but the contrary is suggested. He is shown to have had acquaintances. He was in the employ of the Overland Automobile Company, a business concern. His occupation was such as to bring him in touch with many people.
The State’s evidence goes to show that he was absent from the city of Amarillo during a large part of the day upon which the robbery took place; that he was seen on the road traveled by the offenders in various places in an Overland automobile. It may be conceded that on some of these occasions there were no others with him, but it is his theory that it was not he that the State’s witnesses saw and that he was elsewhere. To meet the requirements of the law which the appellant invokes, it would be necessary that the state of the evidence be such as to exclude the knowledge of his presence elsewhere by others. Quoting from the opinion of the court, written by Presiding Judge Davidson, the court said:
“In order to make this bill complete, it should have ben shown by its terms that there were no other witnesses present except defendant and Bolt, or it should have shown, if it was a question of alibi, that there were no other witnesses by whom appellant could prove the alibi except himself.” (Huff v. State, 103 S. W. Rep., 395.)
To sanction appellant’s contention would result in giving the statute a construction which has heretofore been rejected and be obnoxious to the rule often declared and uniformly followed by this court.
In the same bill of exceptions the proposition is urged that the District Attorney, in the course of his argument, said: “The main public road from Groom ran through the town of Conway.” This argument was made, as shown by the bill, upon the testimony of witnesses by the name of Walker and in connection with the theory of the State that the appellant was seen at Conway on the day the offense was committed and that he, at the time, was en route to Amarillo.
The' specific complaint being that the declaration was in the nature of testimony given by the State’s attorney in his argument. The Walkers (father and son) both declared that they were acquainted with the appellant. One said: “I live six miles from Conway on the public road that runs between Groom and Amarillo. I think that is the main traveled road.” The other testified that he saw a man, whom he took to be the appellant, riding in an Overland automobile pass through
Conway going west; that the road through Conway was a public road running east and west and that a man coming from Claude and going to Amarillo would be traveling west. It was the theory of the testimony of the accomplice Beam that the appellant went from Claude in the direction of Amarillo and that he and the accomplices separated after passing through Groom. We think if the remark complained of was not properly based upon the.evidence, it was a legitimate inference from proven facts.
The witness James W. Beam, who testified to the identity of the appellant as one of the participants in the robbery, had been convicted of robbery and a bill of exceptions reflects the complaint of the manner in which his pardon was proved. It seems that when the witness was presented, a statement was made by counsel for the appellant to the effect that they were willing to admit that the ■'’fitness had been convicted of a felony and had been pardoned. Rater, as we understand the record, an objection was urged against the competency of the witness upon the ground that the counsel was mistaken touching the pardon, and in connection with the matter, a pardon was introduced issued to Jim Bean, who had been indicted for the robbery of A. T. Ramey. The judgment of conviction we do not find in the record. We do not feel called' upon to discuss the matter at length, suffice it to say that in the state of the record as presented, we think the identity of the witness with the person convicted and pardoned was sufficiently established. Hunnicutt v. State, 20 Texas Crim. App., 639; Martin v. State, 21 Texas Crim. App., 11; Petty v. State, 65 S. W. Rep., 917.
From Underhill on Criminal Evidence, Sec. 208, we take .the following quotation:
“A pardon is valid, though it incorrectly state the date of the conviction, or even state an impossible date, if it was intended to cover and does cover" the offense. Parol evidence is admissible to identify the person and the particular conviction of crime named in the pardon.”
The sufficiency of the evidence is challenged upon the theory that the evidence corroborating the accomplice is insufficient. One of the men who committed the robbery was dressed in unionalls, and had a cloth over his face and a pistol in his hand, and was in company with another man in a five-passenger automobile which was stopped by the roadside. A woman in^company with Ramey assisted in robbing him. This occurred while Ramey'and the woman were sitting in an automobile known as a Briscoe roadster, which Ramey had bought for the woman. After robbing him, the party, including the man in unionalls, rode in the respective cars to the point where Ramey was bound and left. Later the witness Beam and the women were arrested while in company with each other near the place and in the vicinity of Groom, at which point, according to the witness Beam, the appellant, who had taken part in the robbery and who was the possessor and operator of the five-passenger car, had separated from his associates in the robbery. Beam and the woman had been in Amarillo for some time.
Beam testified that they were husband and wife. They, while in Amarillo, had stopped at separate hotels and gone by different names.
Ramey was an associate of the woman and was expecting to receive. a sum of money. This Beam learned through her and, according to his testimony, communicated to the appellant, and upon this information the conspiracy to rob Ramey was formed by the three. There was evidence that in his négotiations for the purchase of the car for the woman, the appellant, who was an automobile salesman, came in contact with the two. He was shown to have visited the woman at her hotel on several occasions. These visits and appellant’s acquaintance with the woman were testified to by several witnesses.
On the day of the robbery, by the testimony of witnesses, Beam was placed in proximity to the appellant in an automobile. The route taken by appellant and Beam from the State’s standpoint, was described by Beam in detail, as was also the route taken by them after the robbery; and parties along the route testified to circumstances tending to corroborate Beam in his statement with reference to these occurrences. In this connection, Mrs. Barker, who lived along the route, saw two cars answering the description given by Beam, in one of which, a five-passenger old car, one man was riding, and in the other a man and woman, with a man standing on the running-board. This is in accord with Beam’s description, also the testimony of Ramey, and a witness who knew Boone testified to having seen him in company with another in the town of Goodnight, at a time coinciding with the statement of the accomplice.
Walker and his son testified to facts in accord with the statement of the accomplice to the effect that after the robbery the parties remained in company until they reached Groom and there separated, appellant going to Amarillo. Unionalls were found in the automobile in the place of business of the appellant, as was also a pistol. These were identified by the accomplice as those worn and possessed by the appellant at the time of the robbery. The manner of his dress was- also testified to by Ramey though he was unable to give any specific identification of the wearing apparel.
,It doubtless could not be said that any one of the corroborating facts would meet the requirements of the law, but taken collectively we think the contrary is true. It is not essential that the corroborative facts should identify the appellant as the robber. If such were the requirements, the testimony of the accomplice could be dispensed with. The- corroborating evidence must
tend
to connect the accused with the offense. Such is the language of the statute. Code of Crim. Procedure, Art. 801. Such is the interpretation in Meyers v. State, 7 Texas Crim. App., 640; Wright v. State, 47 Texas Crim. Rep., 433; Nourse v. State, 2 Texas Crim. App., 304; Nite v. State, 41 Texas Crim. App., 352.
In part, the word “tend” is defined to mean “to serve, contribute or conduce in some degree or way; to have a more or less direct bearing or effect.” (Century Dictionary and Webster’s Dictionary.)
“It does not contemplate conjecture but that the testimony shall have a tendency to prove the averments in the indictment.” (Words • & Phrases, Vol. 4.)
' The corroborating evidence must be more than enough to raise a suspicion but it need not be sufficient, standing alone, to show guilt. (Hoyle v. State, 4 Texas Crim. App., 239; Cyc. of Law & Procedure, Vol. 12, page 456.)
Circumstantial as well as direct evidence is available. Corpus Juris, Vol. 16, page 705.
Aside from the evidence of the accomplice to the specific fact that the appellant had aided in planning and executing the robbery, the corroborating evidence is such that the jury may have found that the appellant, soon after the robbery, was in company with the accomplice while they were taking the injured party to the point where he was bound and left.
The witness, Mrs. Barker, did not identify the appellant as the man she saw driving his car in company with the roadster containing the three parties mentioned, but her description of what she saw, in connection with other facts and circumstances that have been mentioned, doubtless led the jury to the conclusion that the appellant was one of the parties. He had been seen before in the vicinity in company with a man whom the jury doubtless found to be the accomplice Beam and was seen by the Walkers later on his return to Amarillo. The evidence goes to show that the pistol and the apparel which bore the same appearance as that worn by the assailant of Ramey and described by him was found in the car which was under the control of the appellant. These and other facts to which we have adverted, we think, are such that in view, of the verdict of the jury, we are not warranted in concluding that the evidence other than that of the accomplice did not
tend
to identify the appellant as one of the offenders.
The fact that the niece of Beam had been associated with the accomplices, and according to Beam’s testimony, had at one time joined the conspiracy, did not require that the court instruct the jury to acquit the appellant if the niece committed the offense. We find no evidence that raises the issue as to her presence at the time the offense was committed. In cases in which the State relies on circumstantial evidence alone, the courts have gone far in holding admissible evidence that another may have committed the offense. Dubose v. State, 10 Texas Crim. App., 230; Taylor v. State, 81 Texas Crim. App., 359. Even in cases of that character, the evidence is rejected though another have motive to commit the offense where there is no evidence of his opportunity to do so. Shultz v. State, 13 Texas Reports, 401; Hamlin v. State, 39 Texas Crim. Rep., 606; Porch v.. State, 50 Texas Crim. Rep., 335; Taylor v. State, 87 Texas Crim. Rep., 330, 221 S. W. Rep., 615.
Of course, in cases where the evidence raises the issue as to whether the accused or another committed the ofifense, a charge submitting the
issue in an affirmative way from the appellant’s standpoint should not be refused. Wallace v. State, 65 Texas Crim. Rep., 654, 145 S. W. Rep., 925. But in the instant case we do not regard the evidence as ■raising this issue.
We think the testimony of the witness Ramey that at the former trial of the appellant the money taken from his person at the time of the robbery had been, exhibited to him and he identified it as his own was not objectionable. If its admissibility was questionable, we fail to appreciate its harmful effect. The money had been taken from the witness Beam upon his arrest. The fact that he took it from Ramey was not a subject of controversy.
An examination of the additional matters presented on the appeal reveals to us no question which, in our judgment, requires discussion. Nothing is presented for review which, in our opinion, authorizes a reversal of the judgment. It is therefore affirmed.
Affirmed.