Clements v. State , 106 Tex. Crim. 628 ( 1927 )

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

This is a companion case to that of Shannon v. State,284 S.W. 586. The state's testimony is sufficient to support the verdict, while, on the other hand, the defendant introduced testimony that would, if believed, entirely exonerate him. The record shows that one English and Phipps owned a store at Curry, Navarro County, Texas, and that the store was robbed on one Sunday night about nine o'clock, at which time English, one of the owners of the store, and a man by the name of Boone and one Kelley were inside of the store with the lights on engaged in playing some kind of a game. The robbers, one of whom is alleged to have been the appellant, came in the front door armed and with handkerchiefs over their mouths. There were three of them in the party, two of whom came into the store and did the robbing, the other remaining on the outside. They were in the store but a few minutes and departed by the front door, the way they came in.

Bills of exceptions Nos. 1, 2, 3 and 4 complain that the trial court erred in permitting the witnesses A. L. English, E. B. Boone and H. E. Kelley to testify to conversations that took place at the time of and within five minutes after the robbery had been accomplished. This evidence was clearly res gestae and admissible.

Bill of exceptions No. 5 complains that the witness Elbert Phipps, in response to questions propounded to him by the County Attorney, testified as follows:

"One reason why I didn't tell Old Man Jones anything about the transaction on the next morning is because he was constable down there and was drunk half of the time and I didn't feel like he was capable of finding out anything. I didn't think he could do any good and felt that it would do more harm than good if I told him who was suspected and if he knew who it was I felt that he would like to tell them and I wanted to find out who the third man was."

The appellant recalled the witness Phipps, who was a state's witness, and proved by him that he saw Jones the next morning after the robbery and that he didn't tell Jones who committed the robbery. It was proper under the facts and circumstances of this case for the state to re-examine him, and the court committed no error in allowing the witness Phipps to explain why he didn't tell Jones who committed the robbery. The appellant cannot be heard to complain, having brought about the situation himself, and further we hold that if same was error it was not such an error as would warrant a reversal of the case.

Bill of exception No. 6 complains at the action of the trial court in not permitting appellant to prove by the witness J. H. Jolly that on the next day subsequent to the robbery and about the time defendant was arrested, that said witness Jolly had a conversation with the witness Elbert Phipps, the owner of the store that was robbed and the owner of the money that was taken, and that Phipps stated to said witness Jolly about the time appellant was arrested that they thought they had the right parties, yet he did not wish to make any mistake about the matter and that he would like to have the witness Jolly keep on the lookout and give him the benefit of whatever he might be able to find out. The court refused to permit the witness to testify as to this conversation. The appellant contended that if Phipps made such a statement to Jolly it would be persuasive of the idea that neither Phipps nor his partner English were by any means certain that they had arrested the right parties and that this testimony would cast doubt on the identification of the appellant. We are unable to agree with appellant's contention.

The evidence in this case shows that Phipps was not present at the time of the robbery, and that English was present at the time appellant and his associates robbed the store. The witness Jolly testified on direct examination as follows: "I met Mr. English and he asked me if I had seen anybody come out that way, and I told him I had not, and he said: 'I have been hi-jacked,' and I said: 'Did you recognize any of them?' and he said 'No.' " The witness Phipps, not having been present at the time of the alleged robbery, could not possibly have identified appellant, and to have permitted witness Jolly to testify to the facts complained of in the bill would be in effect an effort to impeach the witness Phipps on a matter that he could not possibly have known anything about. We fail to see any error in the ruling of the court.

There being no other errors in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of 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.