Green v. State , 66 Tex. Crim. 446 ( 1912 )

The appellant was convicted of robbery of Nelse Shanklin with firearms and given the lowest penalty, five years in the penitentiary.

The State, by three witnesses, proved this state of facts: On the first Sunday night in May, 1910, the appellant and Nelse Shanklin and other negroes were gambling at appellant's house. Said Shanklin won $14.25 in silver from appellant. During the game Shanklin gave to Willie Emmerson, who had staked Shanklin in the beginning of the game, $5 of the money he had won from appellant. At the conclusion of the game Shanklin had $5 of the won money in his vest pocket and had picked up the last $4.25 which he won from appellant at the end of the game. Appellant announced to Shanklin that he, Shanklin, had won. Thereupon appellant raised up on his knees with a pistol in his hand and said to Shanklin, "Chuck that money over here." Shanklin then had $4.25 of the money in his hands and $5 in his pocket. Shanklin replied, "No; this money is mine. I have won it fairly and I will not give it to you." Appellant said, "Chuck it over." Shanklin testified that he thought he had better chuck it to him and shoved the $4.25 to him. Appellant then said, "You have got some more of that money in your pocket; chuck that over, too." Shanklin replied, "Emmett, if anybody had told me that you would treat me this way, I would not have believed it." Appellant said, "Chuck it over, I've got to have this money to turn in; I'll pay it back." Shanklin said, "You ought not to treat me this way at your own house." Appellant then cocked the pistol and Shanklin took the $5 out of his pocket and shoved that to him, too. Appellant took the $9.25 from him. Shanklin testified that he did not give it to him willingly and that he took it from him without his consent.

The same testimony substantially was given by Willie Emmerson and Garland Hamner, who were present at the game.

In addition to this, Willie Emmerson testified that as soon as said Shanklin had chucked or thrown the money to appellant, as shown above by the testimony of Shanklin, that appellant at once said to Emmerson, "You chuck that money over that Nelse gave you," and that he did so. This all occurred at the same time and immediately after what Shanklin testified had occurred to him.

Appellant did not testify, but he introduced witnesses who more or less disputed the testimony of the State's witnesses. It appears from all the testimony that his claim is that he did not rob said Shanklin, but that after Shanklin had won the money from him he won it back from Shanklin in playing another game, which they call "thirty-six's." This game is not fully described by the testimony, but from it we gather that the card game with "thirty-six's" was with appellant's cards and that it was a swindling or fraudulent game. Shanklin and the said two other State witnesses disputed this.

By appellant's bill of exceptions Nos. 1 and 2 he complains that when the State's witness, Nelse Shanklin, was on the stand he was asked the following questions, to wit: "You did not give him the money willingly, did you? and he did not have your consent to take the money, did he?" To both of which questions the witness answered "No." When the questions were asked, appellant objected thereto; that they were illegal and inadmissible, because leading and could be answered yes or no, and suggest the answer which the witness was expected and desired to give. The other bill is to substantially the same questions to Willie Emmerson, the same answer and the same objections.

What is stated of these bills is substantially all of them. They are wholly insufficient to show any reversible error, or any error at all. Carter v. State, 59 Tex.Crim. Rep.; Henderson v. State, 5 Texas Crim. App., 134; Montgomery v. State, 4 Texas Crim. App., 140; Rodriguez v. State, 23 Texas Crim. App., 503; Moore v. State, 37 Tex.Crim. Rep.; Hamilton v. State,41 Tex. Crim. 599; Conger v. State, 63 Tex.Crim. Rep.,140 S.W. 1112.

By appellant's bill No. 3 it is shown that while the State's witness, Jesse Shanklin, was on the stand he was permitted to testify over appellant's objection that he had a conversation with his brother, Nelse Shanklin, on the night of the alleged robbery after he had come from the home of Emmett Green (appellant) and that in said conversation Nelse Shanklin told him (the witness Jesse) that the defendant, Emmett Green, had taken the money from him by threatening him with a pistol. Appellant's objections to this testimony were that it was hearsay and shows that the witness was not testifying from his personal knowledge of the facts, but solely from information derived from others. The court, in approving the bill, did so, with this qualification: "That as a part of defendant's testimony in the case, he placed upon the stand a witness by the name of Sonny Stanchel, who in answer to questions of defendant's counsel testified that about 12 o'clock on the night of the alleged game of cards and robbery Jesse Shanklin (brother of prosecuting witness) came to his house and stated to him that his brother (Nelse Shanklin) had just told him, that in a game of cards at the home of Emmett Green, Emmett Green had robbed him, Nelse Shanklin, out of some money with ``thirty-six's,' and wanted him, Stanchel, to go and make Emmett Green give the money back to his brother." This is in substance the whole of the bill. It is wholly insufficient. See authorities above cited. But even upon consideration of it, we are of the opinion that it does not present error. Certainly, the State had the right to introduce this witness to dispute, as he did, the appellant's witness, as shown by the qualification of the judge. Again, the attempt was made by the appellant, and much testimony introduced, impeaching the testimony and credibility of the State's principal witness, Nelse Shanklin, and tending to show that he made contradictory statements from his testimony on this trial. Under such circumstances it is unquestionably the rule in this State that either side can support the testimony of such attacked witness by showing that shortly after the transaction, he made statements of the matter similar to his evidence delivered on the trial. For authorities on this proposition see subdivision 4, section 1119, p. 729, of White's C.C.P.; and section 874, p. 556, of Branch's Criminal Law of Texas.

In the amended motion for new trial several complaints are made of the charge of the court. No exception was taken to the charge at the time it was given nor did appellant ask any special charge on the subject to cure any supposed omission or commission in the charge. One of the objections to the charge is, that the court told the jury that if they found the defendant guilty they should assess his punishment by death or by confinement in the penitentiary for a term of years not less than five. This is the statute, Penal Code, 1327 (new). Besides, the jury gave him the lowest term under any phase of the law and he could not have been and was not injured.

He also complains of the fifth paragraph of the charge wherein he claims the court set out and described the manner in which Nelse Shanklin came into possession of the money, and in alluding to the gambling game, because it was on the weight of the evidence, and because defendant made no claim to the money nor any claim to the ownership and possession thereof, and that said charge was calculated to and doubtless did mislead the jury to defendant's hurt. None of these criticisms are well taken. The court properly submitted to the jury the issues raised by the testimony, which is always correct.

There is nothing in another criticism of the charge of the court claiming that the court ought to have told the jury that they must find that the offense was committed before the filing of the indictment and not subsequent thereto. The indictment was found January 12, 1911, charging the offense to have been committed on or about May 1, 1910. All of the testimony was to the transaction that occurred on or about the first Sunday in May, 1910, and at no other time. The court in submitting the case for a finding told the jury that "if they believed beyond a reasonable doubt that the appellant on or about the first day of May, A.D. 1910, in the county of Robertson," etc. No possible injury could have occurred to the appellant for anything that occurred after the indictment was found.

Neither is there anything in appellant's next complaint that the court erred in failing to require the jury to believe that the offense was committed in Robertson County, for the charge just above quoted specifically required that.

The next complaint is that the court erred in the seventh paragraph of the charge, because it authorized a conviction, even though defendant at the time of taking the money, if any, did not intend to permanently deprive Nelse Shanklin of the use and benefit thereof, but intended afterwards to repay him. The court specifically charged that, "even though they may believe that appellant presented a pistol at or towards Nelse Shanklin and took from his possession and person the money described in the indictment without the consent of said Shanklin, but if they believed that at the time he took it, if he did, he did not intend to permanently appropriate it to defendant's use and benefit, or if they had a reasonable doubt as to what his intent was to acquit him." In addition the court gave the general charge of presumption of innocence and reasonable doubt, and still, after submitting the case to the jury for its finding, and requiring all of the requisites necessary to show him guilty, stated: "If you have a reasonable doubt of the existence of the above alleged state of facts, or any of them, you will acquit the defendant." Appellant's rights in this regard were protected by the court in every particular.

Neither is there any merit in appellant's contention that the evidence is insufficient to sustain the verdict. The evidence was ample and clearly sufficient, even though disputed by appellant's witnesses.

The only other ground set up by appellant is, his claim that a new trial should have been granted because of newly discovered evidence. We have recently had this question under consideration in the case of Gray v. State, 144 S.W. 284, and in accordance with all the uniform authorities, in that case, said:

"Article 817, Code Criminal Procedure (old), prescribes: ``New trials in cases of felony shall be granted for the following causes and for no other.' Subdivision 6 thereunder, giving these grounds, is: ``Where new testimony material to the defendant has been discovered since the trial, a motion for new trial based on this ground shall be governed by the same rules as those which regulate civil suits.'

"It is well established by the decisions of this court that a motion for new trial on this ground is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burns v. State, 12 Texas Crim. App., 394; Templeton v. State, 5 Texas Crim. App., 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Texas Crim. App., 209; Terry v. State, 3 Texas Crim. App., 236.

"It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court (1) that the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence and not merely cumulative, corroborative or collateral; (4) that it will probably produce a different verdict if a new trial is granted; (5) that it is not simply for the purpose of impeaching a former witness. If the application is defective in establishing any one of these essentials, a new trial should be refused. Fisher v. State, 30 Texas Crim. App., 502, 18 S.W. Rep., 90; West v. State, supra; White v. State, 10 Texas Crim. App., 167; Shaw v. State, supra; Duval v. State, 8 Texas Crim. App., 370; Gross v. State, 4 Texas Crim. App., 249; Hutchinson v. State, 6 Texas Crim. App., 468."

We have carefully gone over the grounds of the motion for new trial and the affidavits attached thereto, and are clearly of the opinion that the court did not err in refusing a new trial on this ground.

We have carefully gone over and studied the whole record and the forcible brief of the appellant's able attorneys and are of the opinion that no reversible error has been pointed out. The judgment will, therefore, be affirmed.

Affirmed.

ON REHEARING. May 8, 1912.