Baker v. State

CALHOUN, Judge.

The offense is accomplice to highway robbery; punishment, 20 years in the penitentiary.

The testimony shows that on the 27th day of May, 1932, the bank at Seagraves, Texas, was robbed. About 12:30 on said date a Miss Lora Brown, who was assistant cashier and bookkeeper, was the sole person in charge of the bank. She testified that one Jodie Edwards, alleged in the indictment to be the principal offender, on that day came in the bank and with a drawn pistol held up and robbed her. One Meredith, who the state contends was a party to the crime, was also present. The robber required Meredith and Miss Brown to go into the vault. The safe inside the vault had been left unlocked and the said Edwards required Meredith to take the money, which amounted to something like $3,200.00, and put it in a sack. The robber then escaped. The testimony further showed that just a short time prior to the robbery the appellant had been in the bank and had left about the time Meredith came into the bank. Part of the state’s testimony connecting the appellant with the robbery depended upon a confession made orally to the sheriff and while the appellant was confined in jail and under arrest.

The appellant testifying in his own behalf admitted that he had been approached on the proposition to participate in the robbery by one Herring, who the state contends was the person who instigated the crime. He testified that several conversations took place with Herring about the matter and that he was introduced by Herring to Edwards and the parties agreed that the robbery should be affected the next day. He objected to this and wanted to put it off a week. He also testified that his part of the transaction was to be in the bank for the purpost of failing to identify Edwards in the event anything should go wrong. That he wanted to be left out of it, but Edwards threatened him; that he had heard the conversations and knew the parties and it was too late for him to get out of it. He denied that the had ever encouraged Edwards to commit the crime. His whole defense was that after having come into the matter and entered into the agreement he wavered and did not carry out his part of the plot. He admitted that he used his car to carry Edwards, the robber, out of the county and admitted that he was given $470.00 of the money.

Two bills of exception appear in the record, which complain of the receipt-in evidence of the confession on the part of the appellant made to the sheriff and which connected the appellant directly with the crime. There is also a bill of exception reserved to the court permitting the state, to cross-examine the appellant, while a witness in his own behalf, in regard to said alleged confession. In regard to said alleged confession, the sheriff, one Telford, testified as follows: While the appellant was in jail, during a conversation with the said sheriff, the appellant said to him, “If you were in my place, what would you do?” and he replied, “I do not know”; that the appellant then asked him what would the sheriff advise him to do and he then replied, “I do not know, I might advise you wrong,” and he said, “If you do, it will be all right,” or “I do not have to take it,” or something like that. The sheriff then told the appellant that if he were in the appellant’s place and he was guilty of the crime he would get all of the money that the appellant had gotten out of the deal, turn it into the court, and «tell them what he did. After some further talk the appellant told him to come back on the next day, which was Sunday, and when the sheriff came back on Sunday morning the appellant was dressed and said he was ready to go. The sheriff further testified that he then took a trip with the appellant and the purpose of that trip was to get the money that the appellant told him he had gotten out of the Seagraves money. They found some money on that trip and the appellant told him said money was his part out of the Seagraves bank robbery.

We are of the opinion that the confession, although the appellant was under arrest, was admissible, though secured by persuasion, under article 727, C. C. P., because part of the fruits of the crime were discovered from the confession made by the appellant. See, also, section 97, 18 Tex. Juris.; Webb et al. v. State, 102 Texas Crim. Rep., 360; Singleton v. State, 87 Texas Crim. Rep., 302; Hilliard v. State, 87 Texas Crim. Rep., 416, 222 S. W., 553.

There are a number of exceptions taken to the court’s charge. The court qualified said exceptions to the effect that the court’s charge as originally prepared was changed in response to appellant’s written objections and no further written objections were filed thereto. In the case of Kincaid v. State, 10 S. W. (2d) 725, Judge Hawkins, speaking for the court, used the following language: “Where instructions are changed in response to written objections and the accused is not satisfied with the change, he should file further 'written’ objections. Hall v. State, 97 Texas Crim. Rep., 158, 260 S. W., 878; Jackson v. State, 103 Texas Crim. Rep., 252, 280 S. W., 808; Butler v. State, 105 Texas Crim. Rep., 228, 288 S. W., 218; Martin v. State, 107 Texas Crim. Rep., 46, 294 S. W., 595. In the absence of further written objections the trial court would have the right to assume that accused was satisfied with the alterations in the instructions, and objections presented for the first time in a bill of exception filed long after the trial cannot be considered under the statute. Articles 658, 660, C. C. P.” See, also, section 50, 4 Tex. Jurisprudence.

The court gave a concise, and as we view it correct, charge presenting all the issues involved in the case. We believe the evidence as a whole is sufficient to support the conviction.

Finding no reversible 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.