Angley v. State , 35 Tex. Crim. 427 ( 1896 )

The appellant was tried under an indictment charging him with an assault with intent to rob, was convicted, and his punishment assessed at two years in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal. Counsel for appellant requests a writ of certiorari, for the purpose of bringing up two bills of exception from the lower court. The motion contains a certified copy of the bills. The court refused to approve the bills, stating, emphatically, that no such things occurred. It was the duty of the appellant to prepare his bills at the time, or request time in which to do so, and if the court refused to permit him to prepare the bills, or refused to sign his bills then he should have appealed to the bystanders; or if the court afterwards (time being allowed) refused to approve the bills or prepare them, the bills having been prepared by the defendant, and certified by the bystanders, we would consider such bills. See this subject fully discussed, and the procedure specifically pointed out, in the case of Exon v. State, 33 Tex.Crim. Rep.. The appellant has not brought himself within the rule laid down in that case, and therefore the writ of certiorari will not issue. Appellant proposed to prove by Mrs. Sharp "that she intrusted her business with him (appellant), and that she would trust him to-day, like he was one of her own boys." The state objected to this testimony, the objection was sustained, and the defendant reserved his exception. The alleged assault with intent to rob in this case was committed at the house of the said witness, Mrs. Sharp, during her temporary absence, and the assault is charged to have been committed upon one Mrs. Butler. If appellant had been charged with theft of Mrs. Sharp's property, this testimony, showing her course of dealing with appellant, might possibly have been admissible, as tending to show consent on her part to take goods by appellant; but the assault here alleged was on Mrs. Butler, with intent to take her property, and we fail to see how this testimony was admissible.

Appellant objected to the testimony of the State's witness, Tom Chambers, to the effect that, on the day of the alleged assault, he saw two men in a pasture, about 600 yards from him, near an old house, going in an easterly direction. One was a tall man, and the other a low man. That he did not recognize them. In connection with other testimony in the case, we think this testimony was admissible, as a circumstance tending to show that appellant and his codefendant, Hess Rice (one of whom was shown to be a tall man, and the other a low man), were in the vicinity of the alleged assault on that day. What we have said as to the above bill of exception is also applicable to the ninth bill of exception, urged against the admission of testimony of Jim Ince, of a similar character. Appellant also objected to certain State's witnesses testifying as to the character of shoes that Hess Rice had on when he testifying as to the character of shoes that Hess Rice had on when he was brought to Mrs. Sharp's, the day after the assault. Appellant claims that this testimony should not be admitted, (1) because Rice was not indicted jointly with the defendant, and the defendant was alone on trial; (2) because, if any conspiracy had been established between Rice and the defendant, said conspiracy was at an end; (3) because there was no evidence that Rice had on the same shoes when he was arrested that he wore on the day of the alleged assault. In our opinion, it was immaterial whether Rice was indicted jointly with defendant or not, and the fact that the conspiracy may have been ended cuts no figure. The State showed by positive evidence that the defendant, with another person, committed the assault. The defendant was described as a tall man, and the other person as a low man. Several witnesses identified the defendant and Rice together, in the vicinity of the assault, on the evening when the same is charged to have been committed. The tracks of two persons in the near vicinity of the house where the assault was committed were found — one being a No. 9, and the other a No. 7, shoe; and the track on the ground made by the No. 7 shoe was shown to leave a peculiar mark, indicating that it had been made by a shoe with a hole or indentation in the sole of it. The defendant was shown to have worn a No. 9 shoe, and Rice a No. 7; and when Rice was arrested, and his shoes examined, the sole of one of them was found to have a worn place or indentation corresponding with the peculiarity in the track as found on the ground; and, in our opinion, the fact that Rice, when arrested, had on a No. 7 shoe with a worn place in it, was a circumstance tending to show that he was one of the parties present at the time the assault was committed, and as tending to corroborate the positive testimony of Mrs. Butler.

Appellant proposed to prove by Mrs. Sharp, a sister of the prosecutrix, that the prosecutrix brought no goods to her house, and that she had no goods or money at her house. On the objection of the State, this evidence was not admitted. This conviction is not for what was done by appellant in the house, but for the assault upon Mrs. Butler with intent to rob her, she being on the gallery. Whether she had any money in fact, or not, was immaterial, unless appellant proposed to carry the proof further, and show that he knew that she had no money. This was not done, nor proposed to be shown. It is well settled that it is not necessary for the person to have money in order to be the subject of an assault with intent to rob. The State introduced evidence that when Hess Rice was arrested there was found in his pocket a red handkerchief. The defendant saved his bill of exception to the introduction of this evidence. The proof on the part of the State showed that one of the parties, at the time of the robbery, had a red handkerchief, which party was described as the "low man." The testimony above objected to was admissible, on the same ground upon which the evidence regarding the shoes was admitted. The State proved, over the objection of the appellant, that the description given by Mrs. Butler of the men who assaulted her suited the description of the defendant and Hess Rice. The appellant states no ground of objection. This is not sufficient. The bill of exception should be full, clear, and specific, setting forth distinctly every fact essential to an understanding of the matter sought to be presented thereby. When taken to the admission of evidence, the bill should clearly disclose the ground or grounds of objection made to the evidence; otherwise it is not entitled to be considered. See Wilson's Crim. Proc., § 2516, and authorities cited. Appellant made a motion for a new trial, on the ground that the jury received additional testimony after their retirement. In support of this, appellant presented the affidavit of Forsyth, a juror in the case. Forsyth states that a fellow juror, Spencer, told the jury, or some of them, that the defendant knew that Mrs. Sharp had money, some $700 or $800; and that this fact was discussed before the jury. Concede that this be true, — before it was mentioned, the jury had agreed upon a verdict of guilty, and the lowest punishment had been awarded. Under this state of case there was no injury to appellant. See Mason v. State (Tex.Crim. App.) 16 S.W. 766; Parker v. State (Tex.Crim. App.) 30 S.W. 553; Ray v. State, ante p., 354.

In the motion for a new trial, counsel for appellant complains of the action of the court in regard to the charge given. The court, after having read the charge to the jury, upon objection of the appellant to the same, struck out paragraph 3, informing the jury at the time that they were not to consider that paragraph. If this were true, counsel should have objected, and embodied the whole matter in a bill of exception. This is not a matter which can be brought forward in the first instance in a motion for a new trial. Again, we are not prepared to hold that the court could not change its charge after having read the same to the jury, when objected to by appellant. We are of the opinion that the purpose of an objection is to give the court an opportunity to correct any error in its charge; and if this matter were embraced in a bill of exception, we would hold that the court did not err. It is contended that the evidence is not sufficient to support the verdict of the jury. Mrs. Butler swears positively that the appellant made the assault upon her. The appellant proved by quite a number of witnesses that she stated, soon after the transaction, and afterwards repeatedly stated, that she did not recognize the appellant and Hes Rice, or either one of them, as the parties making the assault upon her. This evidence was an attack upon her credibility. The jury, however, believed her statement; and when we look to the circumstances in the case tending to corroborate her, we are not prepared to say that the verdict is without support in the evidence. The judgment of the lower court is affirmed.

Affirmed.

[NOTE — Appellant filed a motion for rehearing, but withdrew it. — Reporter.]