Holland v. State , 121 Tex. Crim. 546 ( 1932 )

Conviction is for robbery, punishment being assessed at five years in the penitentiary.

This case has been here before. The result on the former appeal is reported in 110 Tex.Crim. Rep.,10 S.W.2d 561. The judgment was at first affirmed, but on rehearing was reversed because of a defective indictment. The present conviction was upon a new indictment which corrected the defect.

The motion to quash the present indictment was properly overruled. We are of opinion the averments embraced all elements of the offense charged.

John Long had been working for Simond Bros. in road construction work. On January 20, 1928, he was paid for his services by check for $12.35, made payable to him and signed, "Simond Bros., by Percy A. Simond." Not being able to write, Long got another party to endorse his (Long's) name on the check. Appellant is alleged to have robbed Long and taken this check from him, which was alleged to have been of the value of $12.35. The facts from the state's standpoint and the defensive issues are set out at length in the report on the former appeal. They appear to be identical with the present case and it is not necessary to repeat them.

Bill of exception No. 1 reflects that Percy Simond, over appellant's objection, was permitted to state that he had an account at the bank and that the check would have been paid when presented. The objection was that it called for an opinion of the witness, and that the proper authorities at the bank were the only persons who could tell whether said check would have been paid. This same question was raised in bill of exception No. 3 on the former appeal, and was decided against appellant's contention. It thus became the law of the case.

specified in its face, viz: $12.35.

Bill of exception No. 2 goes to the same point. Simond, over objection was permitted to testify that the check was of the value of the amount

In a sense, the testimony of Simond complained of in each bill was the opinion of the witness, yet it was the value of the check that was sought to be shown and "value" is generally the subject of opinion testimony, the weight of it depending on the circumstances and the knowledge of the witness who is testifying thereto.

While the testimony of this witness was not conclusive on the issue of value, it prima facie established it and met the averment in the indictment on that point. No evidence to the contrary appears.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.