Sparks v. State

Appellant was convicted in the district court of Clay County of robbery, and his punishment fixed at two years in the penitentiary.

One Foreman claimed that appellant, Morris and Fuller, by threatening him with personal injury and injury to his property, took from him three hundred dollars in money, and the facts in the record support the conclusion of guilt reached by the jury. Foreman testified that on the occasion in question Morris threatened to do him harm and told him that his head would come off if he did not pay them the three hundred dollars, and appellant told him that they would poison his stock if he did not pay said money. Foreman got the money and delivered it to appellant.

There is a bill of exceptions set out in a supplemental transcript complaining of the refusal of the court to quash the indictment. The bill is not signed by the learned trial judge and, therefore, cannot be considered.

The bill of exceptions complaining of the refusal of the motion to require the State to elect presents no error. The different counts in the indictment related to but one transaction and presented but different phases of said transaction. There could be but one conviction, judgment and sentence growing out of everything that was done and said at said time and place, and in such case it is not necessary that the State elect. Many authorities will be found collated on page 233 of Mr. Branch's Annotated P. C. sustaining this proposition.

There is a bill of exceptions complaining of misconduct on the part of the jury, but an examination of the bill fails to show that what was said in the jury room was not part and parcel of a proper discussion of the evidence heard during the trial. The bill consists of the reproduction of the testimony of some of the jurors but sets out nowhere any other facts to show how or in what manner said discussion was aside from the record or foreign to the testimony heard by the court on the trial. The trial judge heard these jurors testify and decided the issue against appellant's contention. We do not believe he abused his discretion in the matter.

Bills of exception Nos. 3, 3-a, 4, 6 and 7 are in question and answer form and cannot, therefore, be considered by us.

This disposes of the complaints appearing in the record, and being of opinion that no reversible error is shown and that the evidence supports the judgment, an affirmance will be ordered.

Affirmed.

ON MOTION FOR REHEARING.