Henry v. State , 141 Tex. Crim. 486 ( 1941 )

In his motion for rehearing appellant vigorously asserts that we erred in two respects in our original opinion delivered in this case: First, in holding that there were two motions for a severance by the defendants who failed to agree as to who should be first tried and therefore the court was authorized to direct, as he did, the order of the trial; and second, because we overruled his contention that the trial court committed error in declining to give his requested instruction to require the jury to first find whether appellant had participated in an unlawfully assembly and then determine whether he was guilty of engaging in a riot.

We will discuss each of the contentions in the order presented. However, before beginning the discussion of the questions, we deem it proper to state that since the original opinion was delivered by this court appellant has caused to be filed a supplemental transcript in which all the proceedings and discussions had in the trial court, together with all agreements between the State and the appellant, are fully set forth. It appears from the supplemental transcript that when Cause No. 2415, styled State of Texas vs. Jim Jackson, was called for trial, he (Jackson) made a verbal motion for a severance with the request that same be reduced to writing by the court reporter and then verified by Jackson and filed as of that time of the proceeding, to which the State and the court agreed. In the motion for a severance, which was subsequently reduced to writing but never verified by Jackson, he indicated the order in which he desired the trial of the following co-defendants to proceed, to-wit: (1st) J. L. Reese, (2nd) T. J. Cossey, (3rd) E. H. Pierce, (4th) Lloyd Henry, and (5th) Sam Smith. Thereupon, the State inquired of J. L. Reese if he was ready for trial, to which he replied that he was. The County Attorney then moved to dismiss the State's case against Reese, as well as Cossey and Pierce which motion was granted. Then the case against the appellant (Lloyd Henry) was called, and he was asked if he was ready for trial, to which he replied that he was, whereupon the State and the appellant both announced ready and proceeded with the trial. This being true, appellant has no just ground of complaint even though the order of trial as indicated by him or by any of the co-defendants was not followed. Insofar as the appellant was concerned, he had a right to waive the order of trial. The record fails to disclose that any motion to withdraw such an announcement was thereafter made. Under the circumstances, appellant's contention that he was denied the order of trial as indicated by him is without merit. See Landry v. State, 96 Tex.Crim. R.; Rueda v. State, 101 Tex.Crim. R..

We will not discuss appellant's second contention as hereinabove indicated. It is our opinion that appellant was not entitled to the requested instruction to require the jury to make a separate finding as to whether appellant and others engaged in an unlawful assembly. The indictment in this case contains but one count in which it was charged that the appellant and others therein named unlawfully assembled to do an illegal act, specifying it, which constituted a riot as defined by Articles 455 and 464 of the Penal Code. An unlawful assembly is a separate and distinct offense from that of a riot and is fully defined by Article 439, P. C. The punishment prescribed for that offense is different from that prescribed for the offense of riot.

In the instant case, the evidence shows that appellant and his co-defendants, by a pre-arrangement, met on the highway on the afternoon of the commission of the alleged offense and laid in wait for their victims who, when returning from the place where they had been engaged in their daily occupation, were set upon by the appellant and his confederates and severely beaten with wrenches, pick-handles, etc., which acts on the part of the appellant and his co-defendants constituted a riot under the articles of the statute above referred to. Hence, it was the duty of the trial court in his charge to apply the law to the facts of the case and not to charge on an issue which is not supported by the evidence. Of course, an unlawful assembly is a necessary element of the offense of riot. Without an unlawful assembly there could be no riot within the meaning of the statute. The court is not required to instruct the jury to make a separate finding on each of the several elements constituting the offense. Under the court's instruction the jury, in order to convict, were required to find that all the elements of the offense were proven beyond a reasonable doubt.

Believing that the case was properly disposed of on the original submission, the appellant's motion for rehearing is overruled.

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 APPELLANT'S APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.