Knight v. State

BERRY, Judge.

The appellant was convicted in the District Court of Palo Pinto County for the offense of robbery and his punishment assessed at confinement in the penitentiary for a term of five years.

This is a companion case to that of Virgil Montgomery No. 9310, decided by this court in an opinion delivered June 10, 1925, and which is now pending on motion for rehearing. That case contains a sufficient statement of the facts.

Appellant’s first bill of exception complains at the court’s action in permitting some of the State’s witnesses to remain in the courtroom after the rule had been invoked. The court qualifies this bill by stating that the witnesses excused from the rule were officers and the court at times needed them in court when the sheriff was absent. It has always been held that this is a matter addressing itself to the sound discretion of the court and we find in the record before us no abuse of that discretion.

Bill of exceptions No. 2 complains at the court’s action in permitting the State to prove by Jim Riggs, the party alleged to have been robbed that he was scared at the time of the robbery. It was proper to show all the conditions and circumstances occurring at the time the offense is alleged to have been committed which were germane thereto and this testimony was properly admitted under this rule.

Bill of exceptions No. 3 preserves appellant’s objection to the witness Eubank being permited to testify because he had been in the courtroom after the rule had been invoked. Eu-bank was one of the witnesses excused by the court and the court states that he was an officer and what has been said with reference to bill of exceptions No. one disposes of appellant’s contention raised herein.

Appellant also complains at the court’s action in permitting the State to prove by one of the witnesses that he asked Virgil Montgomery on the night the robbery is alleged to have taken place. The bill wholly fails to show the connection in which the question was asked or to state any other fact concerning the matter, and in this condition of the record, we are not able to say that any error is shown by this bill. Besides, the testimony shows that the appellant, Coulson and Montgomery were seen together immediately after the robbery occurred and the testimony further reveals the fact that the defendant made a statement to the officers when he was arrested to the effect that he got §9.00 of the money taken from Riggs and that Coulson got §11.00 and the other §8.00 went to the other boy.

Complaint is also made at the court’s action in permitting the witness Davis to testify that he got §7.00 in the form of a five-dollar bill and two one-dollar bills off of Montgomery, as well as some loose change that was in his pocket. We think in view of the appellant’s confession to the officer Eubanks that this testimony was clearly admissible, and we also think it was admissible to show that Montgomery had changed a dollar bill between the time of the robbery and the time he was arrested. This would be a circumstance tending to corroborate the voluntary statement made by the appellant to Eu-banks to the effect that he got $9.00 of the injured party’s money, that Coulsbn got $11.00 of it and that Montgomery got $8.00 of it.

Appellant complains because the court refused to instruct the jury to acquit in the event the jury should find that the taking of the money from Jimmie Riggs was done in a spirit of fun. The only testimony we find in the record suggesting the theory that the robbery was done in a spirit of fun is that given by the officer who arrested the appellant to the effect that among other things the appellant said when he asked him “How come you boys to hold him up ?” and that he answered “We just decided we would have a little fun out of him.” In addition to this the appellant testified that when the officer asked him “if he had heard about Jimmy Riggs being high-jacked and he said no sir, I had not heard about him being high-jacked, us boys held him up down there a while ago for fun, that was the reason we held him up.” The court in his main charge to the jury instructed them that if they believed from the evidence that the defendant acted in fun and with no intention upon his part of appropriating Jimmy Riggs’ money or any part of the same to his own use and benefit and with the intention of returning same to him or if they had a reasonable doubt as to whether or not such were the facts and the intention of the defendant then they should give the defendant the benefit of the doubt and acquit him.

We think this charge succinctly and properly presented the issue raised by the evidence and protected every right that appellant had with reference to his defense. We have carefully considered the objections urged to the court’s charge and fail to find any merit therein.

Believing that the appellant has had a fair trial and that no error is shown by the record, it is our opinion that the judgment should be in all things 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.