Kelley v. State

HARPER, Judge.

Appellant was convicted of robbery, and his punishment assessed at ninety-nine years confinement in the State penitentiary.

When the defendant was called upon to enter a plea to the indict- • ment he entered a plea of guilty. The indictment charged appellant with robbing J. M. Caywood. The evidence would show that appellant and Dave Weidner entered the office of the Oriental Oil Company, and, with pistols drawn, ordered the men present “to put up their hands,” and this order was promptly obeyed. Appellant then went to the cash register and robbed it, while Weidner kept the men covered with a pistol. After accomplishing the robbery they backed out of the office. J. M. Caywood, on the trial, positively identified appellant as one of the persons who committed the robbery, as did also T. F. Caywood and B. B. Baker. Tod Ground, who was also present, was unable to identify appellant as the person who committed the robbery, but testified to the other facts in consonance with the testimony of the two Caywoods and Baker. When the State undertook by testimony to identify the weapon used by appellant on that occasion, the record shows that appellant admitted that one of the pistols offered in evidence was the pistol he used on that occasion.

Thus it is seen appellant admitted he was the person who robbed Caywood; that he used a firearm in effecting the robbery, and offered no evidence to contradict that state of facts. However, this would not prevent the State from offering and introducing evidence if it saw proper to show that appellant was the person who committed this robbery, and the mode and method of the accomplishment of this robbery, that the jury might determine as to the punishment that should he assessed. Neither do we think there was any error in admitting the testimony that when it was sought to arrest appellant for this identical offense, that appellant resisted arrest, the resistance offered, and that he sought to escape out of the window. There is a contention made that appellant did not know that the men attempting to arrest him were officers. If this was true, there might he merit in appellant’s contention, hut we think it manifest that appellant knew they were officers, for when one of the officers finally shot him through the hat as he put his head out of the window as if to escape, “he hollered he would give up, and surrendered.”

However, as appellant made no contention as to his identity as the person who robbed Caywood; made no question that his intent was to rob Caywood by the use of firearms, and did rob him by that mode and means, in fact admitted this to be true by pleading guilty, we think the court erred in admitting the testimony of J. C. McFarland that appellant had also attempted to rob him that same night, at a point five miles- distant from the scene of the Caywood robbery, and that when he and the clerk in his drug store attempted to escape, appellant and Weidner, who was with appellant on both occasions, shot at him and his clerk four times. The court, in approving the bill, says: “That the above testimony was admitted in evidence in this case for the following reasons: The defendant is charged with the use of firearms, in committing the offense of robbery charged in the indictment in this cause; that the defendant within about an hour prior to the time of the robbery charged in this indictment attempted robbery of what is known as McFarland’s drug store, situated in East Dallas and some five or six miles distant from the scene of the robbery charged in the indictment in this case. That the court admitted the testimony of the above witness for the reasons (1) that the jury should have been informed and should have in their possession knowledge of the intent of the defendant at the time the robbery in this indictment was committed; (2) the intent, not only to rob the oil station but the jury should also have been in possession of what use the defendant intended to make of his pistol in the event the keeper of the oil station refused to obey the defendant’s command to put his hands up. It is true that the defendant and his principal, Dave Weidner, in the offense charged in this indictment, were identified by all the men who were in the oil station at the time same was robbed; yet, said robbery occupied - a period of only a few seconds’ time.”

It is thus seen that the court recognized there was no question in the case as to the identity of this defendant, nor of his intent to commit the robbery charged in this indictment, but he admitted the testimony on the theory that the State would have the right to show that the appellant intended to go further than robbery if Caywood had resisted, or sought to escape, and kill or attempt to kill him. Yet in the commission of the offense' for which he was on trial, there was no resist- © ' anee or attempt to escape, and no attempt on appellant’s part to shoot or kill Caywood.

In the robbery of the McFarland store, at another place and time, McFarland did attempt to escape, and was shot at by appellant. In a case now before this court appellant has been tried for firing those shots and given fifteen years in the penitentiary for firing those shots. Then why should such testimony be admissible in this case? It could and would only go to the enhancement of the punishment to be assessed in this case, by showing that he attempted to kill a man who sought to escape while he was robbing him. It was a different crime, committed at a different time and place, and not being a part of the res gestae of the transaction for which appellant was on trial, the identity of appellant not being questioned, and his intent to*commit robbery and that he did rob Caywood being proven and admitted, no evidence that he was the character of man who would commit murder, if necessary to accomplish the robbery, was admissible, when he had not- put his reputation in issue; and no evidence that he had committed other robberies, and in attempting to do so had also attempted to commit murder, was admissible. He may be and probably will be tried for each of these offenses, and when so tried adequate punishment assessed in each case, but as he did not shoot Caywood, nor attempt to do so in robbing him, evidence that he did attempt to rob McFarland, and shoot at him, was inadmissible under the facts in this case, and the court should have sustained the objection when made. Had appellant received the minimum punishment, as he admits his guilt, we might and would hold that the error was harmless, but appellant did not receive the minimum punishment;, instead of five years, the jury assessed ninety-nine years against him, the evidence accomplishing the purpose for which it was introduced — increase of punishment.

On another trial the State’s counsel will not seek to prove that appellant has heretofore been confined in the penitentiary, unless he should testify or put his reputation in issue. He did neither on this trial.

Again, the prosecuting' officer will confine his remarks to the evidence adduced on the trial and legitimate deductions therefrom. He should not argue to the jury the horrors of a woman being choked to death with a handkerchief tied about her neck, in the suburbs of Dallas. Appellant is not shown to have had any connection with that crime. Nor shall he tell the jury, “The City of Dallas requires the execution of this defendant.” The City of Dallas had nothing to do with the punishment to be assessed against this defendant. That was a question to be determined by the jury on the" evidence they had, and the desires of no person should be made known to the jury in argument. Several other objectionable remarks were objected to, such as “This place is being infested by a band of highwaymen, and that good women are nightly sitting at their homes afraid their husbands will be knocked in the head by some highway robber.” “We do know that men are found in the streets of Dallas knocked in the head and weltering in their blood. We do know that our fair women are murdered by highwaymen and that these crimes are being committed by some Bed ICelley.” “Every man who tied a handkerchief around an unsuspecting woman’s neck and choked her to death had a mother,” etc. Such remarks have no basis in the testimony on this trial. No woman was present when appellant committed the robbery he admitted committing. There was. no evidence that he had ever assaulted any woman, choked one to death, or robbed a woman. In the excess of their zeal our prosecuting officers should not go beyond the record.

For the errors pointed out it will be necessary to reverse and remand this case, although appellant entered a plea of guilty, as the errors com mitted would and probably did contribute to the very high penalty assessed — ninety-nine years confinement in the penitentiary.

The judgment is reversed and the cause remanded.

Reversed and remanded.

April 13, 1916.