Brown v. State

51 S.W.2d 616, 121 Tex. Crim. 528, 1932 Tex. Crim. App. LEXIS 573

Opinions

CALHOUN, Judge.

The offense, robbery with firearms; the punishment, death.

Appellant was indicted by the grand jury of Wichita county, Texas, for robbery with firearms of one Vera Smith, and upon the trial in Young county was convicted and the death penalty assessed.

The testimony of Miss Vera Smith, briefly stated, was as follows: That she resided in Wichita Falls, Texas, and was 24 years old, and had resided in Wichita Falls for five years; that upon the evening of September 9, 1931, she and. her fiance, A. N. Nodurft, went over to visit a cousin who lived in the same town; that after they had stayed there about an hour they left and started home; that they stopped their car on a little-traveled road in the southwestern part of the city, and while thus parked she turned around and saw two black forms approaching the car from the rear; that they had the car lights turned off while they were sitting there and the motor was also turned off, and when they saw these two black forms approaching, her companion tried to start the car, but could not get it started right away on account of a faulty key, and as he was trying to start the car the two persons came around to her side of the car and told him not to start the car; that when they approached the car, she saw that they were negroes; that they both had guns in their hands at the time; that it was the older negro of the two who told her companion not to start the car, but that he did not stop his attempt to do so; whereupon, the older negro fired one shot at her companion and the younger negro was standing by the other one at the time; that after the shot was fired, her companion said, “I have been shot, they got me, kiss me,” and she kissed him; that the older negro opened the door of the car and the younger negro had gone around to the side of the car where her companion was. Upon the command of the older negro, she got out of the car; that he still had his gun in his hand and she also saw the younger negro with his gun; that after she got out of the car, the older negro forced her to go behind the car and the younger negro remained at the car; that the older negro told her, “Give me that ring,” and she took the ring off of her finger and gave it to him; that it was her engagement ring and she gave it to him because he had his gun on her and she was afraid he would kill her or shoot her; that the younger negro then came up to where they were, and at the time the older negro was getting her ring the younger negro was at the car getting the money off of her companion, who was still in the car; that when the younger negro came up to the place where the older negro and she were, they took her to a place about half-way between the car and the railroad tracks and they compelled her to lie down on the ground, and both had their guns at the time; that after she had laid down on the ground, she was assaulted by both negroes, and while she was lying on the ground her watch was taken from her by the older negro; that she let them take her watch because she was afraid they would kill her if she didn’t; that they jerked it off of her wrist.

The evidence showed that A. N. Nudorft died from the effects of the wound inflicted after being taken to a hospital.

The evidence further showed that subsequent to the robbery the engagement ring belonging to Miss Vera Smith was discovered in the possession of a negro woman by the name of Vinnie Strickland, who testified on the trial that it was given her by one Richard Johnson, who was the negro the state’s testimony showed to be the larger of the two negroes who committed the alleged offense. The ring was positively identified as being the ring taken from Miss Vera Smith and which was purchased by the said A. N. Nodurft.

Two confessions of the appellant were offered in evidence. In the last one taken, appellant confessed to the offense charged, but said that he did so by reason of the threats and coercion of his companion in the crime.

Bill of exception No. 9 shows that on the trial of the above-numbered cause in Young county and before the announcement of ready, appellant presented to the court a plea to the jurisdiction of the court. The bill shows that the case was transferred from Wichita county to Young county on a change of venue and thereafter an order calling a special term in Young county was entered by the judge of the Thirtieth District Court on October 24, 1931. The main contention of the appellant, as shown by said bill, is to the effect that the regular term of the Thirtieth District Court was in session in Archer county, Texas, and that such Archer term had not been adjourned and was at that time in' session; that there was then two terms in session of the Thirtieth District Court, one in Young county and one in Archer county, and no adjournment for the term was or had been had at the time in Archer county. The bill further shows that the Thirtieth District Court convened in Archer county for its regular November term provided by the statute, and at that time continued for three days, at which time the court was recessed by the judge to reconvene on the 24th day of November, and the Thirtieth District Court of Archer county had been only temporarily recessed from November 4th to November 23, 1930, and at the time of the trial of this case, November 9, 1931, was the regular date set by the court for the convening of the special term in Young county.

The bill further shows that this case was originally filed in the Thirtieth District Court of Wichita county, Texas, which was the same district which holds court in Archer, Wichita, and Young counties, and of which Allan D. Montgomery was the district judge; that he was the same judge who entered the order changing the venue and was then present in Young county for the trial, of this cause.

Article 1920, Rev. Civ. St., 1925, provides: “Whenever a district judge deems it advisable to hold a special term of the district court in any county in his district, such special term may be held; and such judge may convene such term at any time which may be fixed by him.”

In the case of Wilson v. State, 87 Texas Crim. Rep., 538, 223 S. W., 217, wherein the contention was that the judge of the trial .court could not legally preside over the court of two counties of his district at the same time, it was held that special terms of the district court may be called whenever it may become advisable. There being no question but that the district judge in the instant case deemed it advisable, and that he did call a special term of the district court, we can see no reason, if it be admitted that it became advisable to hold said special term in one county during the session of court in another county in the district, why recess or adjournment may not be temporarily had in the latter to allow the transaction of business which makes it advisable for a special term in the other county, and the trial judge violated no rule of the statute by such procedure. Elliott v. State, 58 Texas Crim. Rep., 200, 125 S. W., 568. See, also, Cransby v. State, 115 Texas Crim. Rep., 441, 26 S. W. (2d) 246.

No injury is shown or claimed by the appellant because of the trial of said case at the said special session of the said court. We see no error in overruling appellant’s plea of jurisdiction.

Bill of exception No. 2 complains of the admission in evidence of the testimony of the witness Clarence Williams, who lived near the town of Gainesville, as to the appellant having picked cotton for him on the 16th day of September, and the payment of appellant’s wages by check, and the introduction of the check.

Bill of exception No. 2A complains of the state being allowed to prove, over objection of the appellant, by the witness Camme Nero, that she lived in the colored section of the town of Gainesville and knew the defendant, Richard Brown, and she saw appellant at her place of business in Gainesville on the 10th day of September; that he had been gone before that for about seven or eight months, and he asked her for something to eat, and she saw him again some time the next week when he came to her place again and asked for something to eat. The appellant objected to all of said testimony because it was immaterial, and as to that part wherein the state was attempting to show the presence of the defendant in Gainesville and his absence therefrom from time to time was an attempt on the part of the state to bolster up its testimony on an immaterial matter. The state evidently introduced this testimony for the purpose of showing flight of the appellant after the alleged commission of the offénse on September 9, 1931. On that issue, the evidence was admissible. “The state may prove the flight or attempted flight of the defendant and the attendant circumstances.” Branch’s Ann. P. C., sec. 135. See, also, Blake v. State, 3 Texas App., 581; Gose v. State, 6 Texas App., 121; McClendon v. State, 101 Texas Crim. Rep., 128, 274 S. W., 159; Chastain v. State, 97 Texas Crim. Rep., 182, 260 S. W., 172.

Bills of exception Nos. 3, 3A, and 4 complain of errors on the part of the trial court in the admission of two confessions alleged to have been made by the appellant. It appears from the record that after his arrest appellant made two written statements which were introduced against him on this trial. Objections were made to the introduction of said written statements upon the ground that said statements were not in compliance altogether with article 727, C. C. P., and also that all of said statements did not pertain to or were confessions of and concerning the offense for which the defendant stood charged, to-wit, robbery with firearms. The opening paragraph of one of said confessions is as follows: “After I have been duly warned by Ge. W. Anderson, assistant district attorney, that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the offense concerning which this statement is herein made, I wish to make the following voluntary statement to the aforesaid person.”

The opening paragraph of the other statement is identically the same, except that the second statement showed that the warning was given by one Mike Anglin, assistant district attorney, and was made to him. Oral evidence was also heard as to whether said statements were freely and voluntarily made. Both of said alleged confessions showed to have been signed by the appellant himself in the presence of witnesses, and the evidence shows that they were freely and voluntarily given. The record shows that that part of the confession wherein a statement was made with reference to the making of beer on the part of Richard Johnson was not offered by the state upon the objection of the appellant. The fact that in the confessions appear testimony and statements material to more than one offense would not of itself serve to reject it as inadmissible in this case as it is part of the same offense. Johnson v. State, 67 Texas Crim. Rep., 95, 149 S. W., 190; Phillips v. State, 102 Texas Crim. Rep., 195, 277 S. W., 679; Coomer v. State, 97 Texas Crim. Rep., 100, 260 S. W., 568; Branch’s Ann. P. C., sec. 61.

It appears from bill of exception No. 5 that after the jury had been out from about 4:10 p. m. on Monday until about 9:10 the next morning, the jury sent word to the court by the bailiff that it had a question they desired to ask the court, whereupon the jury was brought into open court and presented in writing the following question: “In arriving at a decision as to the penalty of the defendant is the jury to consider all of the circumstances of evidence leading up to this crime as charged in the indictment, and if not what part should be excluded?

The court then prepared the following answer to said question, furnishing the same to defendant’s attorney before the same was read to the jury: “Gentlemen of the Jury, in reply .to your question in writing presented in open court in the presence of the defendant, you are instructed that should you find the defendant guilty of robbery with firearms, as is fully set out in paragraphs 5 and 6 of the court’s main charge, that you may, in that event, take into consideration all of the evidence admitted by the court on the trial of this case in assessing the penalty as named.”

The appellant excepted to said charge for the reason that it was in violation of the statutes, the court having already, as required by law, charged the jury the law and having fully set out the rights of the jury in the consideration of the case, and that the same is a charge upon the weight of the evidence and informs the jury of a situation already covered. The appellant, in his brief, contends that the effect of said charge is: Should the jury find the defendant guilty of robbery with firearms, that they might, in that event, take into consideration all the evidence admitted by the court on the trial in assessing the penalty as named, and that this permitted the jury to take into consideration proof of separate, distinct, and extraneous crimes. We think the court properly admitted in evidence the testimony concerning the shooting of Nodruft, the robbery of Nodurft, and the rape of the witness Vera Smith. The evidence reveals that all of said acts were part of the res gestae of the offense for which appellant was on trial, and were for consideration upon any phase of the case. The opinion is expressed that the jury in determining the amount of punishment to be assessed against appellant had a right to consider all of the circumstances in evidence which was admitted as part of the res gestae, and that the court was not in error in so charging the jury in answer to the question asked the court by the jury. See Jarman v. State, 112 Texas Crim. Rep., 239, 16 S. W. (2d) 130; Arcos v. State, 120 Texas Crim. Rep., 315, 29 S. W. (2d) 395.

By bill of exception No. 6, appellant complains of the action of the trial court in sustaining the state’s objection to the following question propounded to the witness Perry Browning while on the witness stand: “Isn’t it true that on that occasion that the defendant said in the presence of all of us in refusing to talk to anybody that it was because he was afraid of the other negro.” The record shows that said testimony asked about was not made at the time when any confession was being taken of the appellant. The evidence further shows that it was not part of the res gestae. The record shows that the assistant district attorney testified without objection that at the time the confession was taken of the appellant that the appellant made one statement of fear, “He said he was afraid of Bob.” That the man Bob he said he was afraid of was the negro who had been identified by these statements as Bob Pope or Johnson. The record further shows that it was not part of a conversation or statement introduced by the state on the same subject. We think there was no error on the part of the trial court in sustaining the state’s objection to said declaration of the appellant on the occasion inquired about as being a self-serving declaration. We quote from Branch’s Ann. P. C., sec. 90: “Proof of declarations made by defendant in his own favor after the alleged offense was committed is not admissible for him, unless part of the res gestae or unless admissible to explain an act, confession, or conversation offered by the state, or unless it is part of the conversation or statement introduced by the state and on the same subject.” See, also, Chant v. State, 73 Texas Crim. Rep., 345, 166 S. W., 514; Cyrus v. State, 74 Texas Crim. Rep., 437, 169 S. W., 679; Smith v. State, 46 Texas Crim. Rep., 284, 81 S. W., 936, 108 Am. St. Rep., 901.

Bill of exception No. 7 complains of paragraph 5 of the court’s charge because same was restrictive and charges upon the theory of principals when the facts in said cause do not raise such an issue of fact. The evidence of the state’s witness, Vera Smith, clearly shows that the appellant and one Richard Johnson were both present and acted together in the commission of the offense, and the court was authorized to charge on the law of principals under said evidence.

The bill of exception also shows that the appellant objected and excepted to paragraph 6 of the court’s main charge in that it fails to limit and restrict the evidence with reference to the commission of other crimes, and that the court should have instructed that the evidence as to other crimes could not be considered in' determining the guilt or innocence of the defendant or in determining the punishment to be assessed against defendant in this case on trial at this time. This contention has been disposed of in the discussion of bill of exception No. 5.

Bill of exception No. 8 also is disposed of in our discussion of bill of exception No. 5.

Appellant also complains of the refusal of the trial court to give his special instructions to the jury to disregard certain portions of the district attorney’s argument to the jury. We do not consider that the argument complained of in this case showed such prejudice to the rights of the appellant, under the evidence, that the refusal of the court to instruct the jury to disregard it would call for a reversal of the case. “The facts' and surroundings of a particular case should be looked to in determining, the effect of argument complained of. The same language under a certain state of facts might be highly prejudicial and not so regarded under other circumstances.” See Silver v. State, 110 Texas Crim. Rep., 512, 8 S. W. (2d) 144, 9 S. W. (2d) 358, 60 A. L. R., 290; McKenzie v. State, 116 Texas Crim. Rep., 395, 11 S. W. (2d) 172.

We have carefully examined and considered all the evidence in the case and believe that it amply supports the conviction.

No reversible error appearing in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.