Viley v. State , 92 Tex. Crim. 395 ( 1922 )

Appellant was convicted in the Criminal District Court of Tarrant County of the offense of robbery, and his punishment fixed at five years confinement in the penitentiary.

Without going into details the facts show substantialy that on the night in question the alleged injured party went to his boarding house and was confronted by three men on the porch, appellant and two other negroes being positively identified by said prosecuting witness as the three men. Witness said that one of them stuck a gun in his face and ordered him to "stick em up," and that he stuck up his hands, and that each of the three men participated in taking property from his person; one of them took his purse and money, and another took his tobacco pouch and a knife, and that appellant took his watch and chain. After getting his property the three left and were followed by said witness who, after keeping them in sight for some time, went and procured officers with whom he further pursued the alleged robbers. Coming in sight of three men on a railroad track, the officers asked him if they were the ones and upon his affirmative answer the car in which the pursuers were, was stopped. Thereupon the parties on the railroad track took to flight and the officers fired pistols. Appellant at once surrendered and the other two fled further and hid, one in a barn and one in a Mexican house, but were shortly afterward captured. All three of the men were taken to the city hall and upon search the money and purse of prosecuting witness were found upon one of them, and the knife of said witness upon another. The watch of said witness was not found at that time but was later found in a wagon near the route taken by the parties.

By a bill of exceptions complaint is made that certain statements of one Hill, one of the three parties accused of the robbery, were admitted on the trial of appellant. The ground of objection as stated to the lower court appears to have been that appellant was under arrest, had not been warned, and said statements were not reduced to writing and not shown to have been made in the presence of appellant, etc. We no where find in said bill of exceptions any statement that these grounds of objection, as stated, were in fact true. The trial court admitted the evidence. We must indulge all presumptions in favor of the correctness of the ruling. The mere statement of grounds of objection in a bill of exceptions, is not equivalent to nor does it do away with the necessity for, a showing in such bill that the matters stated as grounds of objection, are facts. Unless this be shown no error would appear. Funk v. State,84 Tex. Crim. 410.

A number of complaints are made of the fact that there was no special venire drawn, and that appellant's request therefor was denied, and that he was refused a continuance for one day in order to look over a venire list, etc.

Appellant was charged by indictment with robbery, it being alleged that the offense was committed by an assault, by violence and by the use of a firearm. It is made to appear by the court's qualification to the bills of exceptions that the state abandoned the death penalty and no examination was made of any of the jurors relative to their attitude toward the infliction of the death penalty; and an examination of the charge of the lower court reveals the fact that no other theory of robbery was presented to the jury save that of an ordinary robbery by assault and violence. The issue of a robbery by firearms was not submitted. The jury were given no opportunity to inflict the death penalty, nor were any instructions relative to a capital offense given. It is only in a capital case that it is necessary to summon a special venire. The State may indicate to the court its purpose not to ask for a capital conviction in a murder case, and if the court agree and the issues pertaining to such capital offense be not submitted upon the, trial, the failure or refusal to have a special venire to try such case, would not be available to the accused. Gentry v. State, 68 Tex.Crim. Rep., 152 S.W. Rep., 635; Clay v. State, 70 Tex.Crim. Rep., 157 S.W. Rep., 164; Miller v. State, 74 Tex. Crim. 648, 169 S.W. Rep., 1164; Walker v. State, 28 Texas Crim. App., 503; Gonzales v. State, 88 Tex.Crim. Rep., 226 S.W. 405; Crouch v. State, 87 Tex.Crim. Rep., 219 S.W. 1099. We are of opinion that under these facts appearing in the record appellant was not entitled to a special venire, nor to any of the delays or other matters of procedure resting upon the selection of a jury drawn under such venire writ.

The evidence appearing in the statement of facts is very short. Appellant did not take the stand and testify. The prosecuting witness and the two officers were the only witnesses. The identification of appellant was positive. His guilt was undenied.

We find no reversible error in the record and the judgment will be affirmed.

Affirmed.

ON REHEARING. October 18, 1922.