Wyatt v. State , 55 Tex. Crim. 73 ( 1908 )

Appellant was convicted of robbery, and his punishment assessed at confinement in the penitentiary for a term of ten years.

Appellant, in company with another party, on the night of the 16th of November, 1907, while strolling on Bryan Street in front of the St. Paul's sanitarium, came upon the prosecuting witness. Appellant knocked the prosecuting witness in the head with a pistol or bludgeon and robbed him of his watch and ten dollars in silver. Evidence was also introduced which showed that on the same night before this robbery — within an hour thereof — that appellant and the other party, whose name was Jones, held up two other parties, and tried to rob them.

Appellant contends that the evidence does not sustain the conviction, because the indictment charges an ordinary robbery by assault, and the evidence shows appellant, if he robbed prosecuting witness, used a pistol. This is a matter of which appellant can not complain. It was nevertheless robbery whether he did it with a pistol or without a pistol. It is true, the State could have charged a higher grade of offense, but having neglected to do so, it is not a matter of which appellant can complain.

Appellant further objects to the evidence being introduced of the other attempted robberies. The evidence fails to identify the appellant with that degree of conclusiveness necessary, or at least there is not a strong case made out of identification. This being true, it was proper for the court to permit the introduction of the attempted robberies since the evidence conclusively shows that whoever attempted the previous robberies did commit the robbery now under consideration. We have uniformly held that evidence which goes to show intent, or is part of the res gestae, or that serves to identify the defendant as the party who committed the crime, although said evidence may prove other and different crimes, that same is admissible for the purpose stated. But appellant is correct when he insists that the court should have limited the testimony for the purpose for which it was admissible, to wit: identification, and in that connection should have told the jury that they must not consider said previous attempts at robbery for any other purpose save and except to identify the defendant as the party who committed the robbery then on trial. See Burks v. State, 24 Texas Crim. App., 326; Washington v. State, 23 Texas Crim. App., 336, and Hill v. State, 44 Tex.Crim. Rep.; Denton v. State, 42 Tex. Crim. 427; 60 S.W. 670; McAnally v. State, 73 S.W. Rep., 404.

Upon the trial of the case the State introduced a witness by the name of Joe Winterman, by whom the State proved that he bought the watch in question from appellant. The testimony shows for the defense that Winterman at the time he purchased the watch erased a picture from the back of the watch, and would not buy the watch with the picture in it, and scratched it out. It is true Winterman denied this, but still if he did scratch the picture which served to identify the watch from the back thereof, it would be a strong and cogent circumstance to show that he was buying stolen property or property that was received by virtue of a robbery. If he did, this would make him an accomplice. The court should have submitted the issue vel non to the jury as to whether or not the witness Joe Winterman was an accomplice.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.