Railey v. State

The offense is robbery; the punishment, confinement in the penitentiary for fifteen years.

F. C. Strickland, the injured party, testified, in substance, as follows: He was walking down a street in the city of Houston when someone approached him and took hold of his arm. Another man immediately appeared on the scene. Exhibiting pistols, his assailants forced him to walk between two buildings, where they took from his possession sixty-five dollars in money. One of his assailants was a "red complexioned fellow." He was not as tall as appellant. There was a light shining near the building which enabled him to get a good look at appellant. He was positive that appellant was one of his assailants.

Within two hours after the robbery appellant was arrested as he was riding in his automobile with one "Red" Meadows. The arrest occurred near the scene of the robbery. "Red" Meadows, in resisting arrest, fired on the officers and was shot and killed by them.

Appellant did not testify in his own behalf, but introduced witnesses whose testimony raised the issue of an alibi.

Several bills of exception relate to appellant's objection to the testimony of the arresting officers to the effect that, while they were attempting to arrest appellant and "Red" Meadows, "Red" Meadows resisted arrest and was killed by the officers. We deem it unnecessary to determine whether appellant's objection to this testimony was well taken. In an effort to establish an alibi, appellant elicited from his witness Ted Walters substantially the same facts the officers testified to. It has been repeatedly held that, even where evidence is erroneously received, if the same evidence from other sources goes into the record without objection, the error in the first instance is unavailing. Countee v. State, 44 S.W.2d 994, and authorities cited.

In his motion for a new trial, appellant set up newly discovered evidence, and attached the affidavits of the witnesses. The court's order overruling the motion for a new trial recites that evidence was heard. The evidence is not brought forward. It is the general rule that where the order of the court recites that the court heard evidence on the motion for a new trial, this court must presume that the court's action in overruling the motion was correct and that the trial court acted upon evidence that was sufficient to justify his action. Threadgill v. State, 61 S.W.2d 821; Rios v. State,7 S.W.2d 535, and authorities cited.

Appellant contends that the evidence of identification was not sufficient. The injured party positively identified appellant as his assailant, saying that the light shining between the buildings enabled him to get a good look at him. He said that appellant was not masked and that he could see his face. We deem the evidence sufficient.

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.