George v. State ( 1885 )

Willson, Judge.

Many of the questions presented in the record in this case have been discussed and determined in the companion case of Sharpe v. The State, this day decided (ante, p. 486), and it is therefore unnecessary that we should again notice those questions.

I. A witness was placed upon the stand by the defendant to prove certain facts, and the State’s counsel objected to his testifying, because he had not been placed under the rule with the other witnesses, and had been present in the court room during the trial and heard some of the witnesses testify. The court sustained the objection, and would not permit the witness to testify. This was a matter largely within the discretion and under the control of the trial judge, and in such cases it is only when it is apparent that such discretion has been abused to the prejudice of the party complaining that this court will interpose and revise the ruling. (Cross v. The State, 12 Texas Ct. App., 84; Avery v. The State, 10 Texas Ct. App., 200; Estep v. The State, 9 Texas Ct. App., 366.) In this instance the court, in our opinion, did not abuse the discretion confided to it, in refusing to allow the witness to testify.

II. The testimony of the three witnesses to the fact that they saw 'the co-defendants of this defendant, Sharpe and Seargent, in the town of Mew Prague, the place of the homicide, about eleven days prior to said homicide was properly admitted. This testimony was admissible for the purpose of identifying two of the parties proved to have been engaged in the perpetration of the murder, and as a circumstance tending to prove preparation for the commission of the crime afterwards consummated by the joint act of these two parties and the defendant. That Sharpe and Seargent, a short time previous to the killing, were at the same place where it occurred shows that they were not entire strangers in that neighborhood, and tends to prove that they had knowledge of the premises, and that the post-office was situated in the house where deceased carried on business, and where the murder was committed. We think this evidence was relevant and proper, not only against them, but against this defendant, who acted with them in the commission of the murder, it being quite evident that the murder was committed in an attempt to perpetrate a robbery. It seems not only to strengthen the identification of Sharpe and Seargent as two of the murderers, but tends likewise to strengthen the identification of this defendant as the other guilty party, and to show that he was in possession of the same knowledge of the premises and surroundings that might have been obtained by his co-defendants on the occasion of their previous visit to the place. Besides, we think the evidence in this case shows such a complicity between the defendant and his co-defendants as fully justified the admission of this evidence upon the ground of a conspiracy between the three to perpetrate the robbery which they attempted. (Phelps v. The State, 15 Texas Ct. App., 45; Whart. Cr. Ev., § 698 et seq.)

III. The verdict was sufficiently definite. This defendant was the only party on trial, and although the verdict does not refer to him by name, still there can be no room for doubt that he was “ the defendant ” found guilty by the jury on this trial.

After a careful examination and full consideration of the record, we find no error in the conviction, and if is affirmed.

Affirmed.

[Opinion delivered January 31, 1885.]

Judge Hurt dissents from this opinion, and his views will be found expressed at length in his dissenting opinion in the case of Tí. M. Sharpe v. The State, Bo. 1689, this day delivered.