Faulkner v. State , 104 Tex. Crim. 378 ( 1926 )

The appellant was convicted of the offense of robbery with firearms, and his punishment assessed at five years in the penitentiary.

The record discloses that on the night of December 16, 1924, the prosecuting witness, Riley James, while being taken in an automobile driven by Grady Faulkner, the brother of the appellant, to the town of Bremond, where he intended to board a train, was held up on the way by a couple of parties, with drawn pistols. One of the parties, after striking said James a time or two with some instrument, shoved a pistol in his side and marched him some distance from the car and took from his person about $85.00 in money. The other party had Grady Faulkner covered with a pistol, and he, Faulkner, contended that he was also robbed of his money, which amounted to approximately $240. After the said James and Grady Faulkner were released, they proceeded to the town of Bremond and reported the robbery to the constable, and a short time thereafter the sheriff and other parties arrived upon the scene and began an investigation and a search for the alleged robbers.

It was the contention of the state, and evidence was introduced in support thereof, that the appellant, Raymond Faulkner, was the party who held up the said James and took his money from him, and that Grady Faulkner conspired with the robbers to hold the prosecuting witness up and rob him. While the appellant failed to testify in his own behalf, it was his contention that he knew nothing of the robbery and had no connection therewith.

The appellant complains of the refusal of the court to quash the indictment. There is no merit in this contention.

The transcript contains bills of exception Nos. 2 to 15, inclusive. Bill No. 2 complains of the action of the court in permitting the prosecuting witness, Riley James, to testify to the amount of money that he had in his purse the day preceding the robbery, which amounted to about $85.00, and to his making a statement at said time, in the presence of the appellant and his brother, Grady Faulkner, that there was a party who owed him about $400 and that he was going out to see him the next day about it. Appellant contends that this testimony was inadmissible on account of being too remote, and that it could serve no purpose except to bolster up the testimony of the said James. We think this contention is untenable, and that the testimony was admissible for the purpose of showing that the appellant had reason to believe and know that the said James had money in his possession, and was collecting money, and also that the testimony was admissible as tending to show motive.

Bill No. 3 complains of the action of the court in permitting the state to show by the witness James, and have him testify, as follows:

"Yes, the defendant has a scar on his face. The defendant has a scar on his left cheek where a bullet hit him in that fight with Tom Hobbs. After that handkerchief dropped below his nose there that night as he stood in the light I could see the scar on his face and the one there on his chin, too. At the time Raymond Faulkner was tried for shooting Tom Hobbs, or shooting at him, he did not contend I had anything to do with it."

Appellant objected to all of this testimony for the reason that the same was evidence of another felony, was calculated to prejudice the jury against him to such an extent that he could not get a fair trial, was hearsay, and it was not shown that the witness was present or saw the shooting about which he testified. The record discloses that this testimony was introduced by the state for the purpose of having the witness James identify appellant as the man who robbed him. The bill, as presented, shows no error. There can be no question but that the testimony as to appellant having a scar on his face and cheek, and when the handkerchief dropped below his nose while he was standing in the light said witness could see the scar on his face and the one on his chin, was clearly admissible. The objection went to this, as well as to the other testimony, and it was not error for the court to overrule said objection, as appellant did not specify any particular portion of the testimony that was objectionable to him. It is stated in Branch's Ann. P. C., Sec. 211: "A bill of exceptions is too general to be considered if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection to directly challenge or single out the supposed objectionable evidence." In support of this statement there are many authorities cited thereunder, which rule this court has uniformly adhered to and followed.

Bill No. 4 complains of the action of the court in permitting the witness J. A. Cox to testify that the appellant, after the date of the robbery, made a statement to him in which he stated that on the date of the alleged robbery he was in the town of Franklin, and after going to his grandmother's, he took the road back to Camp Creek, the neighborhood in which he and the witness resided. This bill discloses that the time in question was about eight or ten hours prior to the alleged robbery. At the time of this conversation and statement, the appellant had a witness with him to make a statement before said Cox to the effect that on the night of the robbery he, appellant, was at home and in the presence of said witness during the time when the robbery was alleged to have taken place. This bill presents no error.

Appellant in bills 4a, 4b, 4c and 4d complains of the action of the court in permitting the state's witnesses Rucker, Scott, Griffin and T. A. Cox to testify, in effect, that they saw appellant in the town of Franklin about the time he claims to have taken the road back to the Camp Creek neighborhood, as stated by him to said J. A. Cox, and that they saw him take the train at Franklin, going in the direction of Hearne, Texas. It is the contention of the appellant that this evidence was inadmissible against him, though offered by the state for the purpose of impeachment and for the purpose of impeaching a statement made by him to the said J. A. Cox as to his going back to Camp Creek, in the direction of his home. We are of the opinion that the contention of appellant in this respect is untenable, and that the state had the right to introduce this testimony for the purpose of impeaching the statement made by him to the said J. A. Cox.

What we have said relative to these bills will also apply to bills of exception 7, 8 and 9, wherein the appellant moved the court to strike out the testimony of said witnesses.

Bills 5, 5a and 5b complain of the action of the court in permitting the sheriff, Thompson, and the constables, Favlin and Henderson, to testify that on the night of the robbery and a short time thereafter the prosecuting witness James told them that it was the appellant who held him up and robbed him. The objection urged to this testimony is that it was hearsay and introduced by the state for the purpose of bolstering up the evidence of the state's witness James. The record discloses that the appellant, prior to the admission of this testimony, had introduced the witnesses Easterly, Bush and Carthorn, who testified that after the alleged robbery the said witness James told them he did not know who it was that robbed him. The court in his qualification to these bills states that this evidence was admitted for the purpose of rebutting the testimony of appellant's witnesses. This evidence was clearly admissible for the purpose for which it was admitted, in sustaining the testimony given on the trial by the said James. Branch's Ann. P. C., Sec. 181; Marable v. State, 219 S.W. 455, 87 Tex. Crim. 28; Taylor v. State, 221 S.W. 611, 87 Tex.Crim. Rep.; Nations v. State, 237 S.W. 570, 91 Tex.Crim. Rep..

What we have said relative to these bills applies to bills 11, 12 and 13, wherein appellant complains of the refusal of the court to withdraw the testimony of said state's witnesses from the consideration of the jury.

Bill No. 14 is a bill relating to defendant's objections and exceptions to the court's charge. The record fails to show any objections presented by appellant and signed by the court, and this bill, as presented, shows no error.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

Affirmed. The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.