Ellis v. State , 149 Tex. Crim. 583 ( 1946 )

Appellant complains because of the fact that we failed to write on his bills of exception with the exception of his Bill No. 1, wherein it was held that the court gave him sufficient time in which to consult with his client. He contends that all qualifications of the trial court have been eliminated from all his ten bills of exception because of the fact that he refused to accept such bills as qualified by the court and properly excepted thereto and displaced them by a bystanders' bill filed by him after the trial court had prepared the court's bill in each of the ten instances. In all of the trial court's bills, the proffered bill of appellant was copied, and there was added thereto the trial court's qualification, and as thus constituted, same was filed as the court's bill. Appellant attempts to nullify the trial court's qualification to said bills by filing one general bystanders' bill in the following language:

"We, the undersigned citizens of the State of Texas, hereby attest that we are fully informed and understand the contents of the foregoing bills of exceptions; that we were bystanders in the court, and present when the matters related in said bills of exceptions occurred, and we are fully cognizant of said matters and, the said bills of exceptions, which the judge presiding at said trial has refused to sign, is correct, and truly represents the facts as they really transpired.

"/s/ Floyd McCullough

"/s/ Mrs. Robert Hill

"/s/ S. J. Nassie."

Nowhere in such bystanders' bill is any reference made to any certain bill, nor to any qualification thereof, but such single affidavit attempts to contradict all of the ten bills by saying that all of said bills, as refused by the trial judge, are correct. As to the things actually set forth in the bills as happenings, there seem to be no controversy. It is only in the qualifications of the trial court that any diversity of opinion appears, and appellant seeks by this one bystanders' bill to supersede and nullify all ten bills without mentioning them by number. We confess our inability to find any precedent therefore, and do not think that such bystanders' bill should be considered by us, it being too indefinite and vague to furnish any information to this court as to which one of the ten bills is not correct. We are unwilling to say that ten bills prepared and filed by the trial court can be set aside by one bystanders' blanket bill asserting the correctness of ten separate bills filed by appellant. Such bystanders' bill is at least multifarious and contains more than one subject. To consider such bystanders' bill as effective would be to say the qualification to each individual bill was incorrect and did not happen, which we are unwilling to do under the procedure here present. We are therefore relegated to the bills prepared and filed by the court.

In Bill No. 1, it is shown that upon the matters therein complained of being called to the attention of the court, he ordered that the sheriff provide for a private interview to be had between appellant and his attorney, which was done, and appellant had about two hours in time in which to have such consultation before this case proceeded to trial. It is here worthy of note, however, that some two weeks prior to appellant's indictment in six felony cases, he had been represented by his present attorney in the examining trials therein, and had access to his attorney during such examining trials in the Justice Court, where the matter relative to this robbery was the subject of examination.

It is also noticed that neither at the trial, nor at the time of the hearing of the motion for a new trial, was any attempt made to obtain or utilize any testimony herein. Appellant was positively identified as the robber by witnesses, and he offered no testimony save that he was 19 years of age, and was raised in Dallas County. No additional testimony was offered or suggested, either at the trial or in the motion for a new trial.

Appellant's Bill of Exception No. 2 relates to the State being allowed to prove by two peace officers that about three weeks after this robbery, having been given a description of this robber, they were looking for him, not knowing his name; that they saw a man pass them in a car of the description given them; that they followed him, and as they "appeared alongside of his car, they saw him fooling with that gun, that nickel-plated gun there. He had that gun strapped to his waist, and he unwrapped it and put it down on the floor. That was as we were approaching the car." The officers then proceeded to arrest appellant, and upon asking him where the other gun was, he showed them where it was hidden between some cardboard and the body of the car. This later-found gun was exhibited to the witnesses at the robbery and each of them said it was the same color and kind of gun used by appellant at the robbery. Under these facts we think the arrest and detention of appellant was not illegal. See Art. 487, P. C.; 4 Tex. Jur. p. 759, sec. 12; Merriman v. State, 20 S.W.2d 1051; Miller v. State,32 Tex. Crim. 319, 20 S.W. 1103; Salasar v. State, 108 Tex. Crim. 381,1 S.W.2d 314.

There are other matters relative to the argument of the Assistant District Attorney found in further bills of exception here present. In each of such bills it is shown that no request was made of the trial court to instruct the jury to disregard the same. Such a request should have been made. See Branch's Ann. Tex. P. C., p. 204, sec. 362. However, we are not impressed with the matters set forth in these bills as of such a serious nature as that they would require a reversal of this case.

The motion for a rehearing will therefore be overruled.