Burkhalter v. State

247 S.W. 539, 93 Tex. Crim. 504, 1922 Tex. Crim. App. LEXIS 720

• Court: Court of Criminal Appeals of Texas
• Decided: February 22, 1922
• Docket: No. 6455.
• Status: Published

Opinions

LATTIMORE, Judge.

Appellant was convicted in the District Court of El Paso County of robbery, and his punishment fixed at confinement in the penitentiary for five years.

No more of the facts will be stated than are necessary to understand the opinion. Appellant was charged with robbery of one Rivera, in the usual form charging robbery by the use of a firearm. The injured party testified that after a short acquaintance with one - Frank Miller and several conferences with him in which Miller told witnes that he had an automobile located down near the town of Ysleta, in the Rio Grande valley, below the city of El Paso, witness made a date with Miller to go down and look at said automobile with a view of purchasing same. The parties went on an interurban to Ysleta, and proceeded on foot toward what Miller said was the place where said car was located. As they approached the vicinity, Rivera stated to Miller that he saw a man hiding in some tall weeds near the road but was assured by Miller that this amounted to nothing as said party was one of the men who worked around there. As they approached the spot where said man was concealed he arose out of the weeds and presented a pistol to Rivera and took from him $500 in money. A parley ensued. Rivera positively identified appellant as the man who held him up, and testified that Miller and appellant went aside and talked for fifteen or twenty minutes, and that he and Miller left the spot together. He also said that as they were leaving he told Miller that he was going to report the occurrence at once to the court and Miller advised him not to do it, and further told him that if he did not do so that he, Miller, would repay the amount taken from Rivera, within eight or ten days, and Rivera testified that he wrote out a card in Spanish at the time upon which it was, stated that Miller owed him said amount of money, and that Miller signed this card. The card containing a statement of the acknowledgment of the indebtedness of $500 to Rivera was offered in evidence by the State and identified as the one about which said witness testified. A few weeks after the alleged robbery it is in testimony that Rivera saw appellant at a certain drinking resort and at once identified him as the party who had robbed him. There is some testimony that Rivera and friends of his took hold of appellant at the time and demanded of bystanders that he be arrested. It was shown in testimony that Miller has been convicted of a felony and he did not testify. The appellant’s defense consisted of an alibi, he testifying and producing witnesses who corroborate him, that he was in the city of El Paso and at his office at the time identified by Rivera as being that of the alleged robbery.

By bill of exceptions No. 1 appellant complains of the refusal of the trial court to quash the indictment. The prosecution was under Article 1327, Vernon’s P. C. The form of indictment herein has been sanctioned by this court in many cases. Green v. State, 66 Texas Crim. Rep., 446, 147 S. W. Rep., 593; Robinson v. State, 67 Texas Crim. Rep., 79, 149 S. W. Rep., 186; Bell v. State, 77 Texas Crim. Rep., 146, 177 S. W. Rep., 966; Gonzales v. State, 88 Texas Crim. Rep., 248, 226 S. W. Rep., 405. We can add nothing to what is said by this court in these authorities supporting said indictment.

That prosecuting witness was robbed on the Occasion in question by some one, seems not to be seriously questioned. In appellant’s motion for new trial he asserts that such is thé fact and supports same by appending the affidavit of one Lawson, who therein affirms that he robbed appellant on the occasion in question. Complaint by bill of exceptions of the use of the word “robbed” in various questions. and that the occurrence was referred to as “the time when you were robbed” or “when I was robbed,” would seem to be harmless. Fulcher v. State, 28 Texas Crim. App., 471; Clark v. State, 56 Texas Crim. Rep., 296.

The State claimed a conspiracy between appellant and Frank Miller, and an acting together between them in the alleged robbery. Upon this theory and also in accordance with the doctrine of res gestae, the court permitted in evidence the conversation between Miller and Rivera and the writing and signing of the card mentioned above, by Miller and Rivera while the parties were still in proximity to the scene of the robbery. Rivera testified that he went to said place at the request of Miller to see the car mentioned above. It appears that Miller told him that he had a ranch, near Ysleta and could sell him an automobile which he had there. These declarations of Miller to Rivera would seem to be admissible upon the theory of a conspiracy which we think borne out by the evidence. Smith v. State, 21 Texas Crim. App., 96; Nixon v. State, 36 Texas Crim. Rep., 66; Sapp v. State, 87 Texas Crim. Rep., 606; Middleton v. State, 86 Texas Crim. Rep., 307, 217 S. W. Rep., 1046.

Appellant has a lengthy bill of exceptions complaining of the refusal of the trial court to accord to him a-peremptory challenge in addition to those allowed by statute. If we understand said bill it fails to set out any sufficient ground for the contention. When juror Barada was tendered, after examination the State accepted him, and it is stated in the bill that the juror said he had an opinion but could lay it aside and give both the State and appellant a fair and impartial trial, and that appellant desired to challenge said juror and asked the court to grant him the privilege of doing so, which the court declined. The bill nowhere attempts to show any further reasons for objecting to said juror. It is not shown that his opinion was hostile to appellant, nor that his presence upon the jury in any way militated against the interests of appellant, and we find nothing in the bill presenting any serious error.

Appellant’s bill of exceptions No. 5 consists of eight typewritten pages, presenting approximately twenty objections of appellant to different matters occurring at intervals during the examination of a certain witness, said grounds of objection apparently being dissimilar and the whole concluding with a reference to the entire direct and re-direct -examination of said witness as set forth in the statement of facts A This court cannot consider such a bill of exceptions.

In bill of exceptions No. 6 objection is set forth to allowing witness Beck to testify to certain conversations in the presence of appellant, the ground of objection being because Beck did not understand Spanish. An examination of the facts stated in the bill make it appear that Beck did not undertake to tell what was said in Spanish, but narrated what was stated to him by another party present, presumably in the presence of appellant, who told him what was being said in Spanish by prosecuting witness Rivera. The occasion referred to was that upon which River saw appellant for the first time after the alleged robbery and then accused him of being the man who had robbed him. When officer Beck was called in, he said the conversation on the part of Rivera was in Spanish but that another man present told him that Rivera said he had been robbed by appellant and wanted the defendant arrested. As far as we can judge the contents of the bill, the objection is without support, as the officer’s testimony was not affected by the fact that he did not understand Spanish, and we must presume that the conversation had with the third party was in the presence of appellant.

No error appears in bill of exceptions No. 7 wherein objection was made to evidence showing familiarity between appellant and Frank Miller about the time of this alleged robbery, nor in permitting a witness to testify that he had Miller to sign his name and initials upon a card, nor in introducing such card so attested, in evidence. It was the State’s theory that the appellant was at the place of said robbery, knowing by information received from Miller that the latter and Rivera would be down at said place on the day of the occurrence; and as corroborative of this theory the presence of Miller in and around appellant’s office and the movements of Miller about said time, were admissible. The witness Rivera was cross-examined relative to his failure to report promptly the occurrence of the robbery, and was permitted to explain that his reason for not doing so was because of the promise of Miller that he would repay to him the lost money within eight or ten days. Rivera claimed that the money lost by him belonged to his employer and had been collected by him in the course of his employment. For the same reasons no error appears in bill of exceptions No. 8, it being material to show that Miller and appellant were seen together about the time of and prior to said robbery. General reference in this bill and others to the statement of facts, is of no avail. The bill should be complete within itself.

•The conversation between Mrs. Rivera and Frank Miller is of doubtful admissibility. It might be proper as sustaining the claim of Rivera that his reason for not promptly reporting the robbery was because of Miller’s promise to repay him the money taken at said time. We are not inclined to extend the doctrine of conspiracy as far as the State contends it should go. If it be laid down as correct to introduce statements made by anyone of them, at any time after a theft or other crime had been committed by several, upon the hypothesis that the conspiracy was not yet ended until the safety of each was assured, there could he no end to any conspiracy until all the participants had died or been convicted. However, the conversation referred to contained nothing referring in any way to appellant and was but a statement of Mrs. Rivera to Miller of what would happen to her husband if Miller did not repay said money,. together with the reply of Miller, in substance, that witness need not be alarmed, that he was going to pay him soon. Unless there be something in said conversation which could in some way injure appellant’s rights or prejudice his cause, we would hold the error, if any, of its admission harmless. As substantially stated above, nothing in the record seems to contradict the fact that Miller was with Rivera on the occasion of the robbery, nor that he promised Rivera that if he would not report the occurrence he would repay the money taken. This being true, we do not think the testimony of Mrs. Rivera could have injured appellant’s cause.

The conversation between Miller and the County Attorney of El Paso County, sought to be elicited by appellant as set forth in bill of exceptions No. 10, relates wholly to hearsay matters of a self-serving nature and was properly rejected.

We do not think it a necessary predicate for him to qualify as an expert to enable a witness to testify that by looking through a magnifying glass at the page of a hotel register upon which a certain name was written he could see that something had been erased from said line before the name then appearing thereon was written.

Appellant’s bill of exceptions No. 12 consists of eight pages, stating numerous objections to different matters, including several motions to exclude. Such a bill of exceptions is not in conformity with the rules, and concluding as same does, with the statement that appellant tenders his bill of exceptions with the request that same be examined, approved, ordered filed, etc., makes it impossible for this court to ascertain the grounds of complaint presented or relied upon, and same will not be considered by us.

That the accused'may be asked on cross-examination as affecting his credibility, if he is not then or has not at some former time been under indictment for felony, seems to be the settled law in this State. Branch’s Crim. Law, Sec. 868, for collation of authorities. Complaint of this matter appears in bill of exceptions No. 13.

No error appears in refusing appellant’s request to strike out certain evidence and instruct a verdict for appellant’s acquittal, as set forth in bill of exceptions No. 14.

The court refused appellant’s request to permit him to recall a witness after the evidence was closed. It appears from the record that a subpoena had been issued for a Mr. Wein, husband of one of appellant’s witnesses. Mr. Wein did not appear until the evidence had been concluded. . When he came he brought with him his army discharge of date April 16, 1920. Said discharge was examined by counsel for the State and appellant. The court told them that he would reopen the case to permit the introduction of said discharge on behalf of either party. The State asked the privilege of introducing said discharge, which was granted. Appellant then asked that he be permitted to recall Mrs. Wein “and examine her with reference to the date of said discharge to prove by "said witness that the same became effective on April 17, 1920, when her husband returned to his home as a civilian but the court thereupon refused,” etc. No sufficient reason is set forth in said bill calling for said proposed evidence, and our presumption is that the action of the trial court was correct. We do not understand how Mrs. Wein could testify to the time when such discharge became effective. This matter appears in bill of exceptions No. 15.

If we understand appellant’s bill of exceptions No. 16, it urges ■error in not allowing more time to 'prepare special charges. We gather from said bill that the evidence closed at 10:45 a. m., and that .at 11:35, fifty minutes later, the court submitted to both counsel his ■charge. At 2:20 p. m., after setting forth the proceedings in the interim, the bill sets forth that the court declined to grant further time for the preparation of special charges. We are not prepared to say that the trial court abused his discretion. Three hours is not shown to be an unreasonably short time in which the accused is required to take his exceptions to the court’s charge and prepare suitable special ■charges. Many decisions of this court uphold the idea that much discretion must be confided in the trial court in matters of this kind.

Bills of exceptions presenting objections to limiting the argument to ■one hour and a half to each side, which presents no facts showing injury further than as contained in statements made by appellant’s attorney to the trial court at the time, as his reasons for desiring additional time, will not be held by us to show abuse of the court’s discretion in such limitation. Bailey v. State, 37 Texas Crim. Rep., 579; Creech v. State, 70 Texas Crim. Rep., 229; Holmes v. State, 68 Texas Crim. Rep., 17, 150 S. W. Rep., 926.

Appellant has a bill of exceptions complaining of various statements ■of the district attorney in his argument, which we have examined but .•are of opinion that same presents no error.

As ground for his motion for a new trial appellant set up newly discovered evidence. Evidencing same and attached to said motion was the affidavit of one Lawson. Upon motion of the State, Lawson’s ■affidavit was stricken from the record, it being shown that he was under conviction in the State courts for robbery, and in Federal courts for another felony, and that at the time of hearing such motion he was" then incarcerated in the Federal penitentiary. One of the necessary elements of evidence, newly discovered or otherwise, is that it must be competent. Crossly v. State, 67 Texas Crim. Rep. 464, 148 S. W. Rep., 1087; Pitts v. State, 29 Texas Crim. App., 374. It was not error to strike from the record the affidavit of one who by ■reason of a felony conviction, was incompetent to give testimony in any form. AVe think one so disqualified to testify could make no affidavit "to such facts which should be considered. The other newly discovered evidence appeared from the affidavits of one Karwowski and Mr. Franks. The former swore that a short time before the alleged rob'bery he carried Frank Miller and a Mexican down to a point below Ysleta, in his service car, and that they there had a conversation with :.a soldier in which ammunition was mentioned, and that he told them they could not haul ammunition in his car; that they drove back to 1E1 Paso and he gathered from their conversation that they were going to return to Ysleta. The supposed effect of this affidavit was as bearing upon the proposition that Miller and a Mexican, supposedly Rivera, were engaged in an illegal enterprise on the occasion of the robbery. If we indulge in presumption we would suppose that this was intended in some way to reflect upon the testimony of Rivera, and we are inclined to think the inference far-fetched. Karwowski did not identify the Mexican as Rivera, nor do we quite see how such evidence bore upon the question of this appellant’s guilt or innocence. Another affidavit attached to said motion was that of a Mr. Franks which set up a matter, which if true and provable, would seem to reflect upon State witness A. Piquero, and would tend to show that he was engaged in some illegal enterprise affecting the acquisition and sale of ammunition. It is so well settled that evidence newly discovered which is relevant only as affecting the credibility of witnesses, is not held sufficient to call for a new trial, that we are not inclined to regard appellant’s contention upon this point as of any avail to him. Vernon’s C. C. P., p. 785, for collation of authorities.

Finding no error in the record for which the “judgment should be reversed, an affirmance will be ordered.

Affirmed.