Colter v. State , 37 Tex. Crim. 284 ( 1897 )

Appellant was convicted of robbery, and given five years in the penitentiary, and prosecutes this appeal. Appellant complains that the court erred in overruling his motion to quash the indictment; the ground of his motion being that there is no sufficient description of the money in said indictment. The description contained in the charging part of the indictment is as follows: "Sixty dollars and fifty cents in money, which passed current as money of the United States of America, of the value of sixty dollars and fifty cents," etc. This is in accord with the decision in Thompson v. State,35 Tex. Crim. 511. Appellant also insists that the proof on this point is insufficient. We have examined the record in this connection, and believe that the evidence is sufficiently responsive to the allegation. The witness, Cox, stated that he had $67 when he reached Dallas, and stated about spending certain amounts, which left him about the sum claimed to have been taken from him. In speaking of the occurrence, and of what he was robbed, he said: "They held me down, and turned my pockets wrong side out, and took all my money. I had the money in bills in my watch pocket. I had nothing but money on my person, except my watch and chain and a return railroad ticket." And again he says: "I know I had this money in bills. I had it in my watch pocket." Joe La Presto states, "We got his money from him"; and he speaks of dividing the money between them, and that he got six dollars. We have a statute on the subject of description of money as pertaining to indictments for theft or embezzlement. See, Code Crim. Proc., Art. 456. And this article has been held to apply to money taken by robbery. See, Thompson v. State, supra. In that case, following the authorities on the subject, "money" is held to be "legal tender money under the acts of congress of the United States, whether the same is coin or currency." When the witness, Cox, refers to the property taken from him as "bills," being money, we think this cannot be construed to mean other than currency money of the United States of America. We held in Jackson v. State, 34 Tex. Crim. 90, that the mere designation of property taken as "bills" was not sufficiently certain, as there were various kinds of bills. That is not the case here. There is a distinct reference to the bills taken as money. They are called by the witnesses "money," and they cannot be other than such currency bills of the United States of America, current as money under the acts of congress. Appellant insists that the witness, La Presto, did not qualify so as to become a competent witness. The examination of the witness would appear to indicate that he had but little religious training, and his idea of a future state of rewards and punishments was rather crude; but we do not understand that our law requires any character of religious belief in order to become a competent witness. Under our Constitution and statutes the only requirement in this regard is that the witness shall understand the nature and obligation of an oath; so we take it that an atheist or a deist is a competent witness if he understands the nature and obligation of in oath, and he is sworn or affirmed, as the case may be, in the manner most binding upon his conscience. The witness, in order to be competent, must understand the nature of the oath he is to take; that is, its essential character, the quality or attribute which constitutes and distinguishes it. The word "obligation" is defined to be "the constraining power or authoritative character of a duty; a moral precept; a civil law; or a promise or contract voluntarily made; that to which one is bound; that which one is obliged or bound to do, especially by moral or legal claims; a duty." See, Cent. Dict. Now, if a witness shall understand that an oath or an affirmation, as the case may be, binds his conscience to speak the truth, the whole truth, and nothing but the truth, in regard to the particular matter under investigation, and that it is wrong to tell a lie, and that for a violation of this duty the law imposes a punishment as for perjury, we hold he is a competent witness. Without quoting from the testimony of the witness, La Presto, which constitutes a good deal of the record, in our opinion he manifested that he understood the nature and obligation of an oath as above defined. The State made no issue against the appellant as to his impecuniosity prior to the alleged robbery; nor was it shown that the defendant was found to have money afterwards. So, even if defendant had offered testimony that he had some money at the time of the commission of the offense, we do not think, under the cirtumstances of this case, that the same would have been pertinent. Certainly evidence that some months prior to the alleged robbery he had worked for wages was not relevant. Appellant complains of the charge of the court on the subject of principals, and asked a number of special charges on this subject, which the court refused to give, and he also complains of this action of the court. On this subject, among other things, the court instructed the jury as follows: "All persons who are guilty of acting together in the commission of an offense are principals, and may be prosecuted and convicted as such. Persons may act together in the commission of an offense whether they are bodily present or not, provided they act together under an agreement or combination to commit an offense, and the offense was committed in pursuance of a common intent and previously formed design, each party to such combination and agreement performing his part of the act in the execution of such common design, and which part so acted being necessary to the completion and consummation of such offense." And again: "If, under the evidence, there is in your minds a reasonable doubt as to the presence of the defendant at the place where the offense is said to have been committed at the time it is alleged to have been committed, and there is also a reasonable doubt in your minds as to whether defendant was a principal in the commission of said offense, as principal has been heretofore herein defined, then you should acquit the defendant." The court, in this connection, further charged on the subject of conspiracy, in connection with the acts, declarations, etc., of co-conspirators, as to how they could be used. The theory of the State was that on the night of the robbery defendant, with three others, entered into a conspiracy to rob the prosecutor, Cox; that they left Dallas for Oak Cliff on the same car with the prosecutor; that when he got off the car at its terminal, they also got off, and divided into pairs, two of them, to-wit: Clark and La Presto, going ahead, and defendant and Wyatt following after them. The evidence on the part of the State tends further to show that Clark and La Presto intercepted the prosecutor. Clark knocked him down and robbed him. The defendant and Wyatt came up just as they finished, and all four ran off together. A couple of witnesses, who came up about the time the robbery was completed, testified that they saw four men running off from the place where the alleged robbery was committed. They state that they were not certain whether there were four men; their impression was to that effect. When they first saw them, the prosecutor directed their attention to them. The men were then running off together, some little distance from where they were. La Presto testified that before the commission of the robbery he and Clark went on ahead, and the others followed on behind; that while they were getting the money out of Cox's pockets, they heard a horse and buggy coming up, and ran; that they met the other two (being defendant and Wyatt) about thirty-five feet from where they robbed Cox, and all ran off together. They all came to the street car track, and defendant and Wyatt came back to Dallas on the street car, and Clark and La Presto went on. The testimony shows that they came into town on the Santa Fe railroad. Under this state of case, the charge of the court on the question of principals was sufficient. The parties were in fact all engaged in the robbery. All were present. Two did the work, but the defendant and his companion were immediately at hand, carrying out their part of the agreement, and ready to give assistance should occasion require. The further charge of the court above quoted, that if defendant was not present at the time, and acting as principal, the jury should not convict him, sufficiently presented his theory of the case arising from the testimony offered by him; and the charges asked were not necessary. The charge asked on circumstantial evidence was not called for in this case, as there was positive evidence of appellant's participation in the robbery. There is nothing in appellant's contention that the court erred in not having the witnesses brought back to testify before the jury. The court sent for said witnesses, but pending their appearance it seems the jury brought in a verdict, and we are bound to presume that in the meantime their memory had been refreshed as to what said witnesses had testified, and they did not desire to have said witnesses reiterate their testimony. This is the only construction we can place upon the fact that they brought in a verdict. The judgment is affirmed.

Affirmed