Underwood v. State , 38 Tex. Crim. 193 ( 1897 )

DAVIDSOH, Judge.

Appellant was convicted of robbery, and Ms punishment assessed at fifteen years in the penitentiary; hence this appeal.

When his case was called for trial, appellant filed his application for a continuance on account of the absence of Aiken Polkinghorn, H. Polkinghorn, and R. E. Polkinghorn, alleged residents of Harris County. This process was issued on the 31st day of March, 1897. The indictment was returned into court on January 1, 1897. The process was returned on the 12th of April, 1897, not executed. It is apparent that the diligence used was not sufficient. The case was tried "on April 15, 1897. By each and all of the witnesses, defendant expected to prove that “on the night of the 15th of December, 1895, and for some time prior thereto, and afterwards, the foster mother of the defendant, Mrs. Clara Hnderwood, was seriously ill. The said witnesses, on the night of the 15th of December, 1895, were at the house of George E. Hnderwood and his wife, Mrs.Clara Hnderwood, and defendant was also there. That he came from his work between 5 and 6 o’clock in the afternoon, and remained at the house during the entire night, and slept in the room with the defendant.” By the witness Aiken Polkinghorn, “he expected to prove that he slept in the same bed with the defendant on that night.” He also alleges that these witnesses were at the time boarding at the house of his foster father, Geo. E. Hnderwood, and their usual and customary hour for retiring "was about 9 o’clock. In other words, he expected to prove an alibi by the absent witnesses on the night of the 15th of December, 1895.

If the facts expected to be proved would not tend to substantiate this fact, then they would be useless in the case. This is the only night specified by defendant; though in a general way he alleges that he could prove by said witnesses that he was at his home several nights' before and subsequent to December 15th. On the trial, the evidence showed that the robbery charged in the indictment was committed on the night of the 7th of December, 1895. His application also shows that one of the reasons why he was at home on the night of the 15th, and a few days before and after, was because'Mrs. Hnderwood, his foster mother, was sick; and the evidence on the trial shows that that sickness began on the 11th, and continued until the 18th, of December; at least, that is the time fixed by the witnesses who testify specifically as to the time of her sickness. It-was during this sickness that appellant claims he was at home, and it was for the testimony of the absent witnesses to sustain this claim that his continuance was sought. If every word appellant says be true, that he was at home from the 11th to the 18th, inclusive, the testimony would have no bearing upon the case. It was not material, and did not tend to prove a single fact impeaching or contradicting the State’s ease. The evidence introduced by the State shows that the appellant committed the offense of robbery in connection with one Burger and one Otto, between 9 and 11 o’clock on the afternoon of the 7th of December, prior to the sickness of Mrs. Underwood; and it is not claimed by the defendant that he was at home the remaining evenings of the month of December. There was no error in the action of the court refusing to continue the case, and none in refusing a new trial on this ground.

Appellant filed a motion to change the venue in this case, setting up both grounds of the statute, to wit, that there existed such a prejudice against him that he could not obtain a fair and impartial trial in Harris County, and because there was a dangerous combination against him, instigated by influential persons. This was controverted by the State. The testimony is not stated in the bill of exceptions, if any was introduced. This is required by the statute, and has been the subject of discussion in several opinions. As presented by this bill of exceptions, we can not revise the action of the court. Blackwell v. State, 29 Texas Crim. App., 194.

During the trial, the State offered Burger (appellant’s codefendant) as a witness. Appellant urged several objections to the action of the court permitting said witness to testify. The substance of the bill of exceptions may be thus stated: That Burger and defendant had previously been convicted in another robbery case, and both had perfected their appeal to this count. The appeal as to Burger was pending at the trial of this case. The State made an agreement with Burger, by which he (Burger) was to be relieved from punishment in this case provided he would testify truthfully as to the facts in this case as against appellant. The court permitted him to testify. This action of the court is justified by our statutory law. Parties who are charged jointly or severally with the same offense can testify for the State against each other, and the fact that a witness has been convicted of a felony does not of itself render the witness incompetent. The statute has provided that a party convicted of crime is not a convict until he has had the court of last resort to which he is entitled to carry his case pass upon said case. Until this has been done, or he has accepted the sentence of the court, thus making it a finality against him, he is not a convict, within the contemplation of our statute, so as to deprive him of his competency as a witness. This question is not a novel one. It was discussed in Arcia v. State, 26 Texas Criminal Appeals, 193, and that decision has been adhered to in an unbroken line of decisions. If it should happen that on appeal the accused had been errone ously convicted, then he would be placed in the same attitude as if he had not been convicted at all; and, in case of appeal until the judgment against him has been affirmed, he would not be a convict, so as to render him incompetent as a witness.

'[Mote.—Appellant’s motions for rehearing and in arrest of judgment were overruled April 27, 1898, without a written opinion.—Reporter.]

Appellant’s seventh ground of his motion for a new trial, as presented, is not well taken. He claims immunity from trial in this case in said ground, because he was arrested in Canada, and brought to the United States on an extradition warrant charging him with murder, of which he was subsequently acquitted, and therefore he could not be placed upon trial on this charge. Whether or not there is any merit in this contention we are not called upon to decide. If in fact this offense was committed prior to his extradition for murder, and he was not extradited for this offense, there was a legal way by which that matter could have been reached; and if it be conceded that it could be reached upon a motion for •a new trial, the matters showing his contention should have been placed before the trial court, and this court upon appeal. As presented by the record, we aré not called upon to investigate the question.

In regard to appellant’s contention that the evidence is insufficient, it may be stated that the accomplice Burger testified to the conspiracy between himself and appellant and Otto to commit robbery; thait the three went to the business house of Levy, in Houston, and robbed him of $16 in silver, and this at the points of their pistols. These facts are testified to also by Joe Levy and by Minnie Williams. While there is some evidence introduced by appellant tending to impeach Levy and Williams, there is strong testimony in support of the truthfulness of their statements. But, however, this may be, the jury believed the witnesses for the State, and we see no reason why they should not have done so. The judgment is affirmed.

Affirmed.