Counts v. State

• Decision Date: 03 April 1946
• Docket Number: No. 23296.,23296.
• Parties: COUNTS v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W.2d 267

COUNTS v. STATE.

No. 23296.

Court of Criminal Appeals of Texas.

April 3, 1946.

Rehearing Denied May 22, 1946.

Commissioners' Decision.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Luther V. Counts was convicted of robbery, and he appeals.

Affirmed.

Culwell & Culwell, of Amarillo, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

On the night of May 23, 1945, Harris (the injured party), nineteen years of age, went to a night club near Amarillo. Along about midnight he was standing outside the night club endeavoring to get a taxicab to town, when three young men who were strangers to him drove up and offered to take him to town. He accepted and got in the rear seat of the car. The three young men were riding in the front seat. Instead of going to town, the car was driven to the "Fairgrounds"; there the car was stopped—the driver reporting that it was out of gas. The three young men got out of the car and went around to the rear thereof. Harris followed. Then, he testified, "they knocked me down" by a blow on the cheek with a fist. There was then taken from his person a billfold containing three one-dollar bills. Immediately thereafter, the three parties left in the car, leaving him lying on the ground. Harris made his way to a nearby house, where he reported the robbery to the officers and gave them a general description of the parties and the car in which they were riding.

Luther Counts and Virgil Watts were jointly indicted for that robbery. Upon a separate trial, Counts was convicted and his punishment assessed at five years' confinement in the penitentiary. From this conviction, he has appealed.

Upon the trial of the case, Harris was unable to identify his assailants. When Counts and Watts were pointed out to him in the court room, he was unable to say that either of them was the robber. Hence, about all that can be said of Harris' testimony is that it showed he was robbed at the time, place, and under the circumstances mentioned by parties whom he was unable to identify.

The State's case depends upon the testimony of the witness Garver.

Garver, fourteen years of age, testified that, on the occasion mentioned, he went to the night club with Counts and Watts in Counts' car. As they drove up to the club, they saw Harris "waiting for a cab" and he inquired of them if they had seen one. Watts suggested that they would take him to town. Harris accepted, and got into the rear seat. Counts, Garver, and Watts occupied the front seat, with Counts driving. Instead of to town, the car was driven to the fairgrounds and stopped, Counts reporting that it was out of gas. On the way to the fairgrounds Garver said, "Watts nudged me, and winked, but I do not know what that meant." When the car stopped, Counts, Watts, and Garver got out and went around to the back thereof. Harris followed. About that time, the car started to roll and Counts called to Garver to put the car in gear. Garver then went to the driver's side of the car, put the car in gear, and started back to the rear of the car when he met Counts, who said to him, "Let's go." Whereupon, he and Counts got into the front seat of the car from the driver's side, while Watts entered from the other, and drove away. Garver did not know where Harris was at that time, except that he was not in the car and did not leave with them. As to what happened and was said on the way to town, we quote from Garver's testimony:

"After we turned towards Amarillo on East Third Street, Blacky said he knocked the hell out of him. By Blacky, I mean Virgil Watts, and that was what he said. I do not remember exactly whether he said anything about his purse, nor about this man, that I remember. I now state that Virgil Watts at that time did say that they knocked hell out of this man and got his purse, and after that statement was made, Blacky (Watts) took the money out of a pocket book and put it in his shirt pocket."

Later the same night, the three went to a cafe for sandwiches and soft drinks, which Watts paid for. Upon leaving the cafe, all three parties were arrested and carried to the police station and searched. Later, and on the next day, they were placed in jail. Garver was kept in jail for five days. He was never indicted for any offense connected with or growing out of the robbery. He denied any connection with or participation in the robbery, and said:

"The first I knew that Sammy Harris or anybody else had been knocked in the head out there and lost his purse was after we got in the car and the statement was made that they knocked hell out of him."

The search of the parties at the police station revealed no property belonging to Harris, or taken in the robbery.

Upon the facts stated, the conviction was predicated.

The appellant did not testify as a witness in his own behalf, nor did he offer any affirmative defensive testimony.

Under the facts stated, Garver was not an accomplice witness as a matter of law. The trial court did not err in so concluding. At most, the facts presented only an issue thereon for the jury's determination. This issue was pertinently submitted to the jury by the trial court.

Appellant's guilt before the jury was made to depend upon an application of the law of principals. After the statutory definition of that term, the effect of...