Tillman v. State , 88 Tex. Crim. 10 ( 1920 )

The appellant was convicted of theft, and punishment fixed at confinement in the penitentiary for four years.

The injured party, Holloway, occupying a room in one of the hotels at Dallas, rung for a bellboy. The appellant responded, and was requested by Holloway to bring a woman to his room, and also some sandwiches, a bottle of milk, and a pint of whiskey. Holloway gave appellant some money which he took from between the mattresses, where he had a roll of money containing about $900. Appellant returned with the articles named, accompanied by the woman. She remained for a time. Appellant returned, and he and the woman left together. Soon after, Holloway missed his money. He found the appellant in the lobby of the hotel, and was told by him that he did not have the money, but he accompanied Holloway to the woman's room, where she surrendered part of it, together with a diamond which was taken at the same time. Later, the appellant admitted to Holloway that he had taken the property.

It is not clear that under the law in force at the time there was any offense committed in securing the whisky for Holloway. Even if it was otherwise, we think that it was so intimately connected with the transaction as to be part of it, and to render its admission in evidence not improper. Walling v. State,55 Tex. Crim. 254; Watts v. State, 75 Tex.Crim. Rep..

The delivery of the money to Holloway by the woman when appellant conducted Holloway to her room was properly admitted. At the time that the appellant told Holloway that he had taken the property, he is not shown to have been under arrest and in custody, nor are any circumstances developed, we think, which rendered his declaration inadmissible in the absence of warning. Certainly no such conditions are disclosed by the bill of exceptions, and we must presume the ruling of the trial court correct unless the contrary appears from the bill of exceptions. Manning v. State, 51 Tex.Crim. Rep.; Williams v. State,53 Tex. Crim. 3; Branch's Ann, Texas Penal Code, Section 62.

The bill complaining that State's counsel in his remarks made an indirect reference to the appellant's failure to testify, when he used the language "He took the negro in the woman's room and he then and there said: ``Yes, I did it.' No one has denied this. Now, how are you good men going to say Mr. Holloway is not telling the truth," does not show error, for the reason among others that it does not affirmatively show that appellant did not testify, nor negative the fact that there were others present. Ross v. State, 40 Tex.Crim. Rep.; Branch's Ann. Texas Penal Code, Section 209 and 210. Moreover, we gather from the statement of facts that at the conversation which took place in the woman's room there was a policeman present. If this is a correct interpretation of the evidence, then the jury could have drawn no such inference as that contended for. Pickrell v. State, 83 Tex.Crim. Rep.; Ethridge v. State, 74 Tex. Crim. 634. We note also that it appears affirmatively from the statement of facts that the confession of the appellant was not made in the woman's room, but was made later, and at a different place, whether while they were alone not being disclosed.

The confession of the appellant being definite, it was not encumbent upon the court to charge upon the law of circumstantial evidence. Smith v. State, 28 Texas Crim. App., 315; Branch's Ann. Texas Penal Code, Section 1874.

The facts, we think, were such as to justify a charge on the law of principals.

From what has been said it follows that the judgment should be affirmed.

Affirmed.