Hodges v. State

The appellant was tried and convicted of the offense of robbery by the use of firearms, and his punishment assessed at confinement in the state penitentiary for a term of 20 years.

The facts as proven upon the trial are in substance as follows: On the night of the 4th of May, 1933, at about dark, two men came to the home of John York and assaulted him and his wife with firearms and robbed them of $20.00, a pistol and a rifle. At the time that the men entered the home of Mr. and Mrs. York there was an ordinary oil lamp burning in the house which lighted the same. The testimony further shows that one of the men grabbed Mr. York and the other Mrs. York and in the scuffle Mr. York was beaten over the head with a pistol, knocked down on the bed, and ordered to cover his head, while the other man commanded Mrs. York to get the money and turn it over, which she did, and then was told by one of the men that he knew that they had a pistol and a rifle and to get them, which she did, and turned them over to the robbers. Not being satisfied with the amount of money they had obtained they searched the premises for more money, and not finding any they left. The testimony also shows that on Saturday and Sunday prior to the Thursday when the robbery was committed, the accused was seen in company with two strange men, presumably from Oklahoma. The testimony further shows that appellant resided within one-half mile of the home of the Yorks for a period of approximately five or six years; that Mrs. York had known him casually for about five years, and Mr. York had known the appellant about fifteen years and the appellant had shaved Mr. York and cut his hair several times. Within a short time after the robbers had left the home of Mr. and Mrs. York the officers were notified and they immediately went to the home of the Yorks to make an investigation. Mrs. York testified that she did not recognize either of the parties because the one who ordered her to get the money, pistol and rifle held his hand over his mouth. She further testified that Tom Long, deputy sheriff, Lee Owens, and Walter Owens came to their home that night and she told them what had happened but did not tell them that defendant was one of the men who robbed them; that the next morning she saw Mr. Bingham and Mr. Goodall and told them that she did not know who the parties were. Mr. York testified to substantially the same facts. At the trial Mrs. York stated that two weeks after the robbery the defendant passed their home and spoke; he said, "Howdy." She then recognized the defendant by his eyes and his voice, stating that the man who robbed them had brown eyes, but on cross-examination she said she did not see his eyes. Mr. York testified that about two weeks after the robbery when the defendant passed their home he said "Howdy," and he then recognized him by his voice. Not any of the money nor the pistol or rifle were found in possession of the defendant. The defendant's defense was that of an alibi and was supported by the testimony of his brother and his sister-in-law. The district attorney, it appears, had secured a photograph of two parties (presumably the two parties from Oklahoma) and while the witnesses Mr. and Mrs. York were on the witness stand asked them if either of the parties was one of the parties who robbed them. They said that in some respects one resembled one of the robbers and in some respects he did not.

By bill of exception No. 2 the appellant complains of the action of the trial court in permitting the district attorney to ask Mrs. I. W. Hodges, while testifying on cross-examination, whether one of the men in the picture was one of the men who had been at her home on Sunday prior to the alleged robbery, to which the defendant objected because the same shed no light upon the issue and could serve no purpose other than to prejudice the rights of the defendant before the jury and the same was inflammatory, which objection was overruled by the court and said witness was required to answer said question, and she answered that she could not say either way; that she paid little attention to them, to which action of the court the defendant then and there excepted. We do not see the relevancy of this testimony under the charge in the indictment. The appellant was not indicted as a co-principal with either of the men appearing in the picture and there was no evidence in the record that would have tended to connect either of the parties from Oklahoma with the commission of the offense. However, we do not believe that the same is of such harmful nature as requires a reversal of this case. What we have said with reference to bill of exception No. 2 applies to bill of exception No. 3, which embraces the same subject matter.

By bill of exception No. 4 the appellant complains of the action of the trial court, after the State and defendant had rested, in permitting the district attorney, over the objection of the defendant, to take the witness stand and testify that he had shown the picture to the witnesses for the State and that Mrs. York had identified one of the pictures as being a picture of one of the men who robbed them on the night of May 4th, and that said picture was the same picture he had exhibited to the witnesses Buck Hodges and Eb. Smith and to the defendant. We have reached the conclusion that this testimony of the district attorney was clearly hearsay, inadmissible, and was an attempt on the part of the State to bolster up the testimony of the State's witness Mrs. York, who had failed to positively identify the picture as being a picture of one of the men who robbed them on the night of May 4th, 1933. We believe that the admission of said testimony is such error as requires a reversal of this case, and in support hereof we cite the following case, to-wit: Turner v. State, 89 Tex. Crim. 615,232 S.W. 801, and cases there cited.

By bill of exception No. 1 the appellant challenges the sufficiency of the testimony to warrant and sustain the conviction. We have carefully examined the statement of facts and are of the opinion that the same presents a very serious question. The law requires that the proof must show the defendant's guilt beyond a reasonable doubt. That the offense was committed is established by the testimony, to our minds, beyond a reasonable doubt, but the appellant's identity as one of the parties who committed the offense raises the grave and serious question in this case.

For the error pointed out, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

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 STATE'S MOTION FOR REHEARING.