Maxwell v. State

Offense robbery with firearms, penalty five years in the penitentiary.

Appellant's counsel, who was appointed by the court, has filed a very earnest and interesting brief questioning the sufficiency of the evidence. The statement of facts shows that on the evening of the robbery and close to the time of its occurrence, appellant was seen at a filling station in Midland. B. C. Grafa was held up by an unmasked party, having a cap pulled low over his face, and robbed of some money at the point of a pistol, about one and a half or two blocks from where appellant was seen at said filling station and at about the same time of day, or shortly thereafter. Two witnesses identified his voice and walk, but both refused to swear positively that he was the man who did the robbing. He was arrested the next morning in an adjoining town. He then had on a coat which fit the description of that of the party who committed the crime, but his trousers were different. He had neither a gun nor money on him at the time of his arrest. His shoe was taken off and fitted into the track made by the man who did the robbing. The sheriff testified:

"You know how a shoe is in the sand. I set it down and it makes a perfect print. As to that sand being damp or soft, that is pretty good sand piled around there. Yes, such as would retain a track. Yes, it fit in the track as nearly perfect as it could. Yes, the break appeared and was similar. The break in that shoe compared with the tracks."

He testified further that it was an average size shoe and that some other shoe could have made it. It also appeared that appellant came to Midland with a companion, who had returned the night before, which might account for his not having a gun or any money on him when arrested several hours after the robbery.

It was further shown by appellant's father that appellant had never been in any trouble and never owned a gun in his life. His good character was also testified to by witnesses.

We confess that the sufficiency of this evidence has given us some concern. While it is not of an overwhelmingly convincing nature, it is of such cogency and force that we would not feel justified in substituting our opinion for that of the jury who heard and saw the witnesses. The presence of the appellant in the immediate vicinity at about the hour of the robbery, his description fitting that of the person who committed the crime, and the fact of the shoe with a peculiar break in it taken from the foot of the appellant and fitting perfectly into an imprint made by the shoe of the robber, are all taken together, we think, sufficient to justify a conviction. Gill v. State,36 Tex. Crim. 589; Burrill Cir. Ev., p. 267.

Finding no error in the record, the judgment is 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.

ON MOTION FOR REHEARING.