Pruitt v. State

299 S.W.2d 148, 164 Tex. Crim. 340, 1957 Tex. Crim. App. LEXIS 2108

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1957
• Docket: 28733
• Status: Published

Opinions

DICE, Judge.

The offense is robbery; the punishment, five years.

The evidence is undisputed that on the night of January 1, 1956, Charles Thomas, a night watchman for the Steele Lumber Company in the city of Fort Worth, was assaulted and robbed of an International truck and a quantity of mahogany plywood of the approximate value of $1200. The evidence further shows that the appellant was one of the participants in the robbery.

Appellant interposed duress as a defense and in support of the same testified that he participated in the robbery with his step-grandfather because of threats made against him by his step-grandfather and his resulting fear of his life.

Appellant placed his reputation in issue and called witnesses who testified that his general reputation for being a peaceable and law-abiding citizen and for truth and veracity was good.

The court submitted to the jury in his charge the appellant’s affirmative defense of duress which the jury chose to reject and we find the evidence sufficient to support their verdict.

Appellant first insists that the court erred in excluding certain testimony of the witness, Baker, which was offered to show a background of threats and intimidation by appellant’s step-grandfather toward him in support of his defense of duress. The informal bill of exception presenting the matter is deficient and cannot be appraised in that it does not show what the excluded testimony of the witness would have been. Beeler v. State, 161 Texas Cr. Rep. 318, 277 S.W. 2d 119.

Appellant next insists that reversible error was committed in the cross-examination of one of his character witnesses wherein the witness was asked by state’s counsel the following question: “Do you know where he (the defendant) was on October 26th and 27th, 1953; whether or not he was in jail at that time?” to which the witness answered: “No Sir, I wouldn’t know that.”

The record reflects that appellant’s objection to the question was made after the witness answered the question and was as follows:

“We are going to object to that, Your Honor, as I don’t know what they are referring to, and apparently they do not. But we object to it as being prejudicial and inflammatory. I don’t think they know what they are doing and I know we don’t.”

This objection was overruled, but the appellant made no motion to exclude, withdraw or instruct the jury not to consider the question or answer.

It should be noted that what the appellant complains about is the asking of the question, not the answer given thereto.

We express serious doubt as to the sufficiency of the objection, but if we were to consider the same sufficient, we are still confronted with the rule long established in this state that, where an accused allows a witness to answer a question without objection and assigns no valid reason for his delay, it then becomes his duty to move the court to withdraw the objectionable question and answer from the jury’s consideration in order to preserve the error, if any. Broussard v. State, 99 Texas Cr. Rep. 559, 271 S.W. 385; Bates v. State, 99 Texas Cr. Rep. 647, 271 S.W. 389; Smith v. State, 138 Texas Cr. Rep. 219, 135 S.W. 2d 494; Martin v. State, 157 Texas Cr. Rep. 210, 248 S.W. 2d 126; Crenshaw v. State, 158 Texas Cr. Rep. 209, 254 S.W. 2d 402; Adams v. State, 158 Texas Cr. Rep. 306, 255 S.W. 2d 513; Jeskus v. State, 159 Texas Cr. Rep. 240, 262 S.W. 2d 409; Deams v. State, 159 Texas Cr. Rep. 496, 265 S.W. 2d 96; Hunter v. State, 161 Texas Cr. Rep. 225, 275 S.W. 2d 803; and 13 Texas Digest, Criminal Law 1044. Under the record no error is shown.

By Bill of Exception No. 2, appellant complains of the failure of the court to grant a mistrial when state’s counsel made the side-bar remark: “We have the police report, if you want to look at it.” The record reflects that no objection was interposed to such remark at the time it was made but that the trial court promptly admonished the jury not to consider the remarks of counsel as evidence. Appellant then moved the court to instruct the jury not to consider the remark, and the court replied that he had already done so. The appellant made no request that the court grant a mistrial. We have been cited no case nor are we aware of any in which this court has held that the trial court erred in failing to declare a mistrial on his own motion.

By Bill of Exception No. 3, appellant complains of certain jury argument by state’s counsel. The bill reflects that appellant made no objection to the argument; hence, no error is shown. Merryman v. State, 153 Texas Cr. Rep. 593, 223 S.W. 2d 630; and McIntosh v. State, 148 Texas Cr. Rep. 468, 188 S.W. 2d 165.

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

Opinion approved by the Court.