Ingram v. State

LATTIMORE, Judge.

— Conviction for robbery; punishment, ten years in the penitentiary.

Mr. Allen, the party alleged to have been robbed, positively identified appellant as one of two men who held him up with guns on the night of March 7, 1928, and took from him about fifty dollars. The defense was an alibi, which was sworn to by a number of the relatives of appellant who located him on the night in question at another and different place.

There are eleven bills of exception. Bills Nos. 4, 5 and 6 will be discussed no further than to say that in bill No. 4 the expected answer to a question asked by appellant and objected to by the State, is not set out and the bill is without merit. In bills Nos. 5 and 6 the expected answers to questions objected to by the State, were plainly not responsive to such questions, and these bills manifest no error.

State witness Munn swore that on the night of the alleged robbery he saw two men coming west toward a car in the road about a quarter of a mile west of Nimrod where Allen’s store was; that it was a dark night and witness could not tell whether the men were white men or not; he did not recognize them, and was at no time nearer than one hundred feet from them. Bill of exceptions No. 7 sets up that the court erred under these facts in sustaining objection to the question propounded by appellant to this witness to the effect that if that had been Buford and Tim Ingram, would the witness have recognized them. In as much as the witness had testified that he did not recognize the men he saw, and the further fact that it was a dark night and that he was not near enough to tell whether they were white men or not, it appears to us the answer would have been purely conjectural. This court holds that opinions evidencing that they are guesses or conjectures should always be rejected. Warren v. State, 9 Texas Crim. App. 629; Irvine v. State, 26 Texas Crim. App. 48; Clay v. State, 41 Texas Crim. Rep. 656.

The other bills of exception in the record have been carefully examined, but error has not been found in any of them. The facts seem amply sufficient.

The judgment will be affirmed.

Affirmed.