Fitzgerald v. State ( 1920 )

Appellant received a sentence of ten years in the District Court of Donley County, for the offense of robbery, from which conviction he appeals.

Appellant was indicted in the District Court of Potter County, for said offense, said indictment being returned on March 29, 1919. On April 1, of said year, he was duly arraigned and entered his plea of not guilty, and thereafter, on June 12, 1919, the venue of the case was changed to Donley County, the order of the court therefor reciting that it was done of the court's own motion, all parties agreeing and consenting to the same. Thereafter, when called for trial in Donley County, appellant filed a motion to quash the indictment, on the ground that same was duplicitous, uncertain and charged no offense against the laws of the State of Texas. The motion to quash came after the venue had been changed, and was too late. It is the well settled law of this State, both by statute and decisions, that all special pleas and exceptions must be presented before the change of venue is had. Vernon's C.C.P., Art. 630; Goode v. State,57 Tex. Crim. 229.

Referring to the procedure after a change of venue, this Court, in the Goode case, supra, says: "All that is left to be done thereafter in the court to which the case is removed, is to try the issue joined upon a plea of not guilty, and pronounce judgment thereon according to law."

Appellant presents as his second assignment of error, the matters complained of in his bills of exceptions Nos. 2, 3, 4 and 5. Said bills 2, 3, and 4 show that the State was permitted, over objection, to introduce the testimony of the three persons named in said several bills, to the effect that they went, together with the district attorney, to a house at 308 Harrison Street, in the City of Amarillo, in which house appellant had been living, and that on the side of the house occupied by appellant and a woman named Rippey, up in the loft, said parties found a watch, which was identified by the alleged injured party as the one taken from him on the occasion of the alleged robbery. The objection made by appellant to this was that when said watch was found appellant and the woman had been arrested, and were in jail and not present; that the robbery, if any, had already been committed. Said bill No. 5 shows that after said evidence was admitted, appellant placed the district attorney on the stand, and had him to state that he got his information as to the whereabouts of said watch from one Hollobaugh, who told him that he got such information from appellant. Thereupon, appellant's counsel made a motion to have the testimony of the three witnesses complained of in the above bills of exceptions, withdrawn and excluded, for the same reasons given in his objections above set out, and for the further reason that the information which led the parties to find said watch did not come from appellant, but from another party. This motion was refused. No error appears in the action of the trial court in any of the matters referred to. That the watch found in the loft was the one taken from Miller, the owner, was not controverted. That it was found by the officers in the house occupied by appellant, was material, and evidence of that fact was admissible, the weight of such testimony being for the jury. It could make no difference as to the admissibility of such evidence, from what source the officers learned the whereabouts of said watch, and if there was any fact relevant to the question as to how the watch came to be in such place, which had defensive weight, it was appellant's right to have the same before the jury, to thus enable them to decide what weight to give to the finding of said watch at said place. No objections seem to have been made by the State to appellant proving by the district attorney that information as to where to look for said watch came to said attorney from another than appellant, and it nowhere appears that appellant was denied the right to follow up such proof by any other at his command, to show why said watch came to its hiding place, and if possible, that it was not put there by appellant.

Appellant presented various exceptions to the court's charge; one being to the submission to the jury of the question as to whether or not the witness Hollobaugh was an accomplice. The submission of such question to the jury, under the facts of this case, was entirely proper. The State's theory of the case was that Miller, the alleged injured party, was robbed by appellant and one Blackburn. Miller testified that at the time of the alleged "holdup," one of the parties had and displayed a nickel-plated pistol. At the house at 308 Harrison Street, referred to, was also found a nickel-plated pistol. At the house at 308 Harrison Street, referred to, was also found a nickel-plated pistol. The witness Hollobaugh testified for the State that he owned a nickel-plated pistol, and had left it in a room at 308 Harrison Street, occupied by said Blackburn, who was present and knew that the pistol was left there; that later, upon coming to get his said pistol, be found it gone. Further, this witness testified that after hearing of said robbery he was at the house at 308 Harrison Street at a time when appellant and Blackburn were both there, and that appellant told him that he and Blackburn had robbed Miller and that they took a watch off him; that Miller was so scared that he would not suspicion them; that about the same time, Blackburn pulled out of his pocket the nickel-plated pistol of appellant, which appellant identified as his. Appellant's theory, developed from the cross-examination of Hollobaugh, and other evidence, was that if any robbery was committed, Hollobaugh and Blackburn were the guilty parties.

It is the common practice, under our law, to instruct the jury that a given witness is an accomplice, if such fact plainly appear to the trial court, but it is entirely permissible and proper for him to submit the question as to whether in fact such witness be an accomplice, when the issue thereon is contested. White v. State, 30 Texas Crim. App., 652; Williams v. State,33 Tex. Crim. 135; Tucker v. State, 58 Tex.Crim. Rep.; Savage v. State, 75 Tex.Crim. Rep., 170 S.W., Rep., 730.

On the question as to whether said witness Hollobaugh was an accomplice, we further observe that said Blackburn, the party supposed to have committed said robbery jointly with appellant, also testified as a witness for the State to all of the facts and details of the robbery of said Miller by himself and appellant, using said pistol, and nowhere connected the said Hollobaugh with said crime.

Nor was this a case of circumstantial evidence, and the court did not err in refusing to submit the law of same. A confession of an accused, though testified to by one who is admitted to be an accomplice, would take the case out of the domain of circumstantial evidence. Thompson v. State, 32 Tex. Crim. 222; McKinney v. State, 48 Tex.Crim. Rep.; Johnson v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 512.

Blackburn having testified at length to the joint robbery by himself and appellant, of said Miller, there was no error in the charge of the court on the question of principals.

Appellant furthur contends that the trial court erred in failing to instruct the jury not to consider for any purpose, excepting as affecting his credibility, if it did affect the same, evidence that appellant had been charged or convicted of other offenses. Exception was originally taken to the court's failure to give such charge, but upon presentation of said exceptions, the court promptly added such instruction to his charge, and gave the same to the jury. This is one of the beneficial results aimed at by the law, requiring exceptions to the charge to be made before the same is read.

The matters contained in the special charges asked and refused, have all been covered by what has been said in this opinion.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. March 3, 1920.