Silver v. State , 110 Tex. Crim. 512 ( 1928 )

The offense is robbery with firearms; the punishment death.

The fact that appellant and his companion, Stone, deliberately planned to rob Roscoe Wilson, the deceased, and that, in carrying into effect their unlawful design, Stone murdered and robbed him of a large sum of money, while appellant sat by in an automobile, is not controverted. After blotting out the life of their innocent victim, appellant and his companion fled with their ill gotten gains to Oklahoma, where they were arrested. At the time of their arrest they were possessed of the spoils of the robbery. Each confessed. Not a mitigating circumstance appears in the record. Let this statement of the transaction suffice. A detailed statement of the testimony can serve no useful purpose.

In bill of exception Number 3, complaint is made of the receipt of the testimony of C. W. Bolan, police officer of Sulphur, Oklahoma, to the effect that upon the search of the automobile used by appellant it was found to contain three pistols, a box of cartridges, and two suitcases, each containing eighteen hundred dollars in currency.

No warrant authorizing the search of the car had been issued, and, in opposing the legality of the receipt of the testimony, appellant relied on Article 1, Section 9, of the Bill of Rights forbidding unreasonable searches and seizures without probable cause supported by oath or affirmation, and on Articles 4a and 727a C. C. P., which penalize an illegal search and forbid the receipt of testimony touching such search.

The search was made in the State of Oklahoma by officers of said state. However, in disposing of appellant's contention, it is not necessary to decide whether the inhibitions of the Constitution and statutes relating to the subject of search and seizure are confined to the action of officials of our state.

The search of an automobile upon the public highway may be made without a search warrant where the seizing officer has knowledge or information of facts constituting "probable cause." Carroll v. United States, 267 U.S. 132; Battle v. State, 290 S.W. 762.

"Probable cause" has been defined as "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Landa v. Obert, 45 Tex. 539.

The recitals of the bill disclose that the officer had sufficient information before the search to constitute probable cause. Said officer testified, in substance, that he had heard over the radio that there had been a hold-up and murder in Ft. Worth; that he had also gotten over the radio a slight description of the men who committed the crime; that he saw appellant and a man who gave his name as Wilson in Sulphur, Oklahoma, in a Chrysler Coupe, and that, in a conversation they had with him in regard to roads, appellant told him that he was from Dallas, Texas, and that they were going to Shawnee, Oklahoma; that the description he had received over the radio "tallied up with these two men I saw there, this defendant and Wilson."

The record shows that, while the officers were near the car driven by appellant, appellant and his companion came up; that appellant started to get in the car, and that one of the officers told appellant he wanted to look him over; that the officers were holding guns on appellant and his companion; that they demanded that appellant open the back end of the car; that after appellant unlocked the back end of the car, the officers discovered satchels containing the stolen money, and that they thereupon told appellant that they would take him to town for further investigation; that appellant said he would drive his car back to town, and that one of the officers told appellant that he (appellant) could ride in his (the officer's) car; that appellant replied, "damned if anybody drove his car back"; that the officer said, "No, you are going to ride in this car, and I don't want to have any argument out of you about it." The record further shows that in his voluntary confession appellant admitted that he committed the robbery, acknowledged the possession of the automobile he was driving when arrested, and acknowledged possession of the fruits of the crime and the pistols used in its commission. Furthermore, appellant was driving the car in question when first seen in Sulphur, Oklahoma, by officer Bolan, and when arrested had the key to the back end of the car in which the suit cases and money were concealed.

Appellant's contention, as shown by bill of exception Number 4, that the statements made by him to the officers immediately after the search of the car were inadmissible for the reason that he was under arrest and the statutory requirements relating to confessions had not been complied with, cannot be sustained. Where a party is arrested, or sought to be arrested, for an offense, and resists the arrest, it is a legitimate fact to be proved. Mitchell v. State, 106 S.W. 124; Moreno v. State,160 S.W. 361; Walker v. State, 169 S.W. 1156; Klein v. State,277 S.W. 1074; Chester v. State, No. 11,157, Opinion delivered November 23rd, 1927, but not yet officially reported.

Appellant further contends that the statements attributed to him by the officers constituted a confession of ownership of the automobile in which the stolen property was found. Such statements, insofar as they showed that appellant owned the car in question, were inculpatory and constituted a confession in contemplation of Article 727 Cow. C. P., if appellant was under arrest. Willoughby v. State, 219 S.W. 468. Under such conditions, the statements would have been inadmissible in the absence of surroundings bringing them within the operation of the recognized exception to the inhibitions of Article 727 Cow. C. P. In view of the fact, however, that appellant's possession of the car in question was shown beyond dispute by his voluntary confession, the statement made by him at the time of his arrest relative to ownership of the car was harmless. Pettiett v. State, 272 S.W. 473; Scharff et al. v. State,271 S.W. 83; Villegas v. State, 41 S.W. 610.

We perceive no error in the action of the court in permitting the state to prove by officer Williams that at the time of the arrest of appellant he and other officers found three pistols in appellant's car. In qualifying bill of exception Number 5, which preserves the complaint in question, the trial court states that the testimony showed a 38 caliber bullet was taken from the body of deceased, Roscoe Wilson; that appellant's confession showed that the guns found in the car belonged to appellant and his companion; that two of the pistols, one a 38 caliber and the other a 32 caliber, belonged to appellant, and that a 38 caliber pistol belonged to appellant's companion; that the pistol belonging to appellant's companion had been recently fired.

After appellant had been arrested and placed in jail, he was placed in an automobile by the sheriff and district attorney, and directed said officials to a point in Dallas County where a money bag was concealed, which was later identified by witnesses as looking like the money bag taken from Roscoe Wilson at the time he was killed and robbed. As shown by bill of exception Number 6, appellant objected to the testimony of the sheriff touching this transaction.

Whether accused be in custody or not, or be warned or not, his oral or written confession is admissible if in connection therewith he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. Branch's Annotated Penal Code, Section 63; Wade v. State,248 S.W. 382; Broz v. State, 245 S.W. 707. The court did not err in admitting the testimony.

As shown by bill of exception Number 7, appellant lodged several objections to the introduction in evidence of his written confession. The chief objections were that it was shown on the face of the confession that same was made to Jesse E. Martin, district attorney, whereas the proof showed that it was made to Martin and two other officials, and further that the confession was inadmissible because so intermingled with the confession of Stone that it was necessary to introduce Stone's confession against appellant.

There is no vice in the fact that others were present and heard the confession at the time it was made to the district attorney. The proof and confession both show that the statements were in fact made to Jesse E. Martin, district attorney. Neither was the confession inadmissible because the statements of Stone were so intermingled with those of appellant that it was necessary to place such statements before the jury in connection with appellant's statements. It was uncontradicted that appellant and Stone acted together in the commission of the offense. They were both present when the confession was made, dictated it jointly, and signed it in the presence of each other. Moreover, the statements were identical. We think this constituted a proper predicate for the admission of the written statement. Blake v. State,193 S.W. 1064.

Mrs. Wilson, mother of deceased, was a witness for the state. After she had stated her name, age, place of residence and the age of deceased and his height, appellant objected both to this testimony and to what she might further say, assigning as his reason therefor that they anticipated what her evidence was and objected because there was no issue in the case as to the relative size and strength of the parties, and such testimony might be prejudicial to the rights of defendant. Such a bill brings before us no error. Certainly after much of the testimony of the witness had been given without objection, appellant's recourse as to same would have been to move the court to exclude it and instruct the jury not to consider such testimony. This he did not do. Nor are we aware of any rule of procedure which calls upon the trial court to sustain an objection to evidence not yet heard, until and unless same is stated to the court so that its relevance and materiality may be determined. We fail to find where the court below was called upon to exclude either that testimony heard before objection or that heard after the overruling of the anticipatory objection which did not apprise the court as to what was or would be the testimony so objected to. Appellant did not ask that the jury be retired so that the court might hear the evidence and thus determine its materiality. He did not state in substance or detail what the evidence would be. We find no error in the bill, but are further of the opinion that the evidence as same appears set out in the bill would not warrant a reversal even if improperly admitted.

Appellant brings forward several bills of exception in which he complains of the argument of the district attorney. As we understand the court's qualification of, the bills under consideration, the argument complained of was invited by the argument of appellant's counsel. In this condition the bills fail to manifest error.

In his motion for a new trial appellant alleged misconduct of the jury, his complaint being that the jury, before arriving at a verdict, discussed his failure to testify. A review of the evidence heard on the motion convinces us that the trial court was warranted in concluding that no discussion of appellant's failure to testify, further than its mention, which was promptly reproved, was presented, and that the jury did not take his failure to testify as a circumstance against him. See Lamb v. State, 265 S.W. 1035.

Appellant also insists that the court should have granted his motion for a new trial because one of the jurors was prejudiced against him. It is stated in his motion, in substance, that appellant learned after the trial that the juror in question had stated that if he got on the jury he would break appellant's neck. The court heard evidence on the motion. The testimony as to the statements attributed to the juror was conflicting. The juror expressly denied that he made the statements and it was shown by the impeaching witnesses that the juror's reputation for truth and veracity was good. This being the condition of the record, the trial court was warranted in concluding that the juror was fair and impartial. In Branch's Annotated Penal Code, Section 565, p. 288, the rule is stated as follows:

"When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant's guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the Appellate Court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge."

See also Meadors v. State, 275 S.W. 829; Shaw v. State,22 S.W. 588.

In view of the fact that the jury has determined that appellant must pay with his life for the crime he has committed, we have given the most careful consideration to every question presented by this appeal. Our conclusion is that appellant was accorded a fair and impartial trial. The uncontroverted evidence discloses a most shocking and wanton crime. That the jury demanded a forfeiture of appellant's life is not surprising. No mitigating facts or circumstances are present.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.