Crumes v. State , 28 Tex. Ct. App. 516 ( 1890 )

Willson, Judge.

In an indictment for an assault with intent to rob it is not necessary to describe the property which the defendant intended to take, nor is it essential to aver that the defendant intended to deprive the owner of the property of the value of it. In this case the indictment alleges all the elements of the offense,, and the exceptions thereto were properly overruled. Morris v. The State; 13 Texas Ct. App., 65.

It was not error to permit witnesses to state their opinions as to the correspondence of tracks found at and near the place of the attempted robbery and the shoes worn by defendant, and also the shoes worn by one Coleman, who, on the same night of the offense, was seen in company with the defendant. Nor was it error to permit witnesses to state their opinions that the hair found on the fence was from a horse which the evidence showed defendant was riding on the night of the offense. As to the admissibility of such evidence there is no longer any question. Clark v. The State, ante, 189.

Defendant's third bill of exception shows no error. What James Crumes may have said when he delivered the pistol to the officer as to defendant not having had said pistol on the night of the attempted robbery was hearsay, and not res gestee. James Crumes was a competent witness, and if he knew that defendant did not have the pistol on the night in question, he should have been produced to testify to that fact, if defendant desired such fact to be established. Whether or not James Crumes willingly delivered the pistol to the officer was irrelevant to the issue in this case. In this connection we will say that it was proper to permit the State to show that said James Crumes was in attendance upon the trial, and it was not improper for the district attorney in his concluding argument to comment upon the fact, and to argue that said James Crumes could have been placed upon the stand as a witness in behalf of defendant if the defendant had so desired.

Some exceptions were reserved by defendant to the charge of the court, and defendant requested special instructions, which were refused. We have given the charge of the court a careful examination, and in our opinion it is free from error. It presents fully and correctly the law of the case.

The evidence, we think, sustains the conviction, and there being no error shown in the record, the judgment is affirmed.

Affirmed.

Judges all present and concurring.