Adams v. State

Appellant was convicted in the District Court of Wichita County of robbery, and his punishment fixed at five years in the penitentiary. There is no statement of facts in the record.

Appellant complains by his first bill of exceptions of the refusal of a new trial based on newly discovered testimony. Appended to said motion is the affidavit of John A. Thomason stating, in substance, that J.E. Glenn, an officer of the city of Wichita Falls, came to affiant in the city hall where appellant, one S.M. Ghee and Mary Dobson were confined, and handed affiant a package containing about one teaspoonful of white powder wrapped in brown paper, and told affiant that he took it off the person of Ghee. Affiant took said package and put it away. The affidavit contained the further statement that prior to Ghee's arrest he had been under suspicion by the police department for peddling dope and that he had been in company with a person who was subsequently indicted and convicted in the Federal court for selling narcotics.

If Thomason had been a witness in court he would not have been permitted to tell what Mr. Glenn told him about said powder. No affidavit of Glenn was procured stating that he took from the person of Ghee the powder in question. Further, we observe that the bill of exceptions is qualified with the statement that there was no dispute or question as to appellant having taken a dose or shot of some kind of dope prior to the commission of the alleged crime in this case, and no one contradicted appellant's statement to that effect. It would seem that if the affidavit of Mr. Glenn had been attached, same would merely evidence cumulative testimony.

We do not think there is anything in appellant's complaint that he was not given fifteen peremptory challenges. There were a number of counts in the indictment, some charging assault with fire arms and robbery thus committed, and others omitting the allegation as to the firearms. The State waived any right to ask for the death penalty before the case went to trial. There was no error in the court's refusal to allow appellant fifteen peremptory challenges. Gonzales v. State, 88 Tex. Crim. 248; Weaver v. State, 52 Tex.Crim. Rep..

Appellant's bills of exception complaining of the overruling of his objection to certain jurors presents no error in view of the qualifications appended by the court to said bills, from which we learn that upon a full and fair explanation by the court of the law, each juror said that he could and would try the case upon the law and the evidence and not be influenced by the fact that an indictment had been returned against the appellant.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON REHEARING. January 2, 1924.