Abbott v. State

• Decision Date: 07 March 1923
• Docket Number: (No. 7140.)
• Citation: 250 S.W. 188
• Parties: ABBOTT v. STATE.
• Court: Texas Court of Criminal Appeals

250 S.W. 188

ABBOTT v. STATE.

(No. 7140.)

Court of Criminal Appeals of Texas.

March 7, 1923.

Rehearing Denied April 25, 1923.

Appeal from District Court, Tyler County; D. F. Singleton, Judge.

Bryan Abbott was convicted of robbery, and he appeals. Affirmed.

Coleman & Lowe, of Woodville, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Tyler county of robbery, and his punishment fixed at five years in the penitentiary.

There seems no dispute of the fact that on June 3, 1921, the Guaranty State Bank of Colmesneil, Tyler county, Tex., was robbed. The indictment charged the assault as made upon Lee Feagin, and that the robbery was one perpetrated upon Feagin. Feagin was cashier of said bank, and was the only person connected therewith, who was present when the robbery was committed. Something over $1,000 was taken. Three men actively participated in the robbery of Mr. Feagin, the handling of the weapons, and the taking of the money in question. It was the state's theory that appellant was a principal offender with these three, his part of the robbery being to plan same, he being a resident of the town in which the robbery occurred and being familiar with the lay of the land and movements of the officers of the bank; that on the day of the robbery he was in and around the bank observing the movements of its employés and customers, and, when the time most suitable for a successful attack came, that he gave an agreed signal to his confederates, who immediately appeared and committed the robbery. According to the testimony of accomplice McDow, appellant was to take note of conditions from a point of observations on the front porch of the bank, and that when in his judgment the proper time came he was to quit reading a newspaper held in his hand and to walk away from the porch. It was shown by abundant testimony that appellant was around the bank on the morning in question; that he apparently had no business there and did not seek to be waited on. Just at noon appellant was on the porch of the bank, apparently reading a newspaper; two employés of the bank went to lunch; a colored customer of the bank came up, went in, was waited on, and walked away. Appellant closed his newspaper and started away from the porch. His confederates immediately went into the bank, presented their pistols, procured some money, and encountered unexpected resistance on the part of Mr. Feagin, which precipitated a shooting, and the robbers fled. Appellant was shortly afterward importuned to assist in their capture, to use his car for that purpose. He pleaded a headache, a flat tire, that he had lost nothing, and that he would be taking a good chance to get hurt. These matters were in testimony for the state. It was further shown that appellant and his sister and the wife of accomplice McDow in one car, and his three confederates in another car, came from Beaumont to the vicinity of Colmesneil a couple of days prior to the robbery, and that appellant's confederates camped some miles from the town out in the woods, and that he supplied them with food and consulted with them in the planning and preparation for the robbery as above set out. Various corroborating circumstances were in evidence not necessary to enumerate. We will not attempt to discuss at length all of the complaints of appellant, though all have been considered.

A venire of 60 men was ordered. In its drawing four names were duplicated. No willful violation of the court's order was shown, and no ground would thus appear for quashing the venire.

There were two capital cases on the docket of the trial court, the Powers Case and the instant case. That the Powers Case was set for a day later than that of the setting of this case, and that its venire was first drawn and consumed the majority of the regular jury list for the term, not leaving enough for the whole of appellant's venire, presents no reversible error. The Powers Case may have been the older case, and may have been first set and its venire first ordered by the trial court, for all this record shows to the contrary. Aside from this, it is shown that a jury was obtained in appellant's case without exhausting his peremptory challenges.

The bills of exception, complaining of the refusal of the court to order attachments for absent veniremen, are qualified by the trial court, and the qualification accepted by appellant, it being stated that attachments were ordered for defaulting veniremen and all those who could be found by the sheriff were brought in, and that the jury was obtained without exhausting appellant's peremptory challenges.

Appellant filed a plea of jeopardy, setting up that at a former term of the court he had been placed upon trial under an indictment charging him with this robbery, and that after issue had been joined between him and the state, the court had discharged the jury. It is unquestioned that the proceedings had at a former term were before the same court hearing the instant trial. Without dispute it was shown that at said former term, after trial had begun, appellant moved the court to quash the indictment against him, and that his motion was granted. These facts being true, jeopardy did not attach. Carroll v. State, 50 Tex. Cr. R. 487, 98 S. W. 859, 123 Am. St. Rep. 851, 14 Ann. Cas. 426; Mays v. State, 28 Tex. App. 484, 13 S. W. 787; Branch v. State, 20 Tex. App. 599.

A special charge to the effect that, if appellant had been brought to trial upon an indictment sufficient, and said indictment had been quashed or a dismissal had after plea by the accused, he should, be acquitted, was correctly refused. Such a charge did not state the law applicable to the facts of this case, nor is it correct as an abstract legal proposition. Many cases might be instanced wherein the trial court would be warranted in discharging the jury after a trial was partially had, without the attachment of any jeopardy. As far as we are informed, it is uniformly held that, where the former trial was brought to a close at the request of the accused, he may not thereafter seek to set up jeopardy as a defense based on the fact of such termination of said trial. In McCaskey v. State, 76 Tex. Cr. R. 255, 174 S. W. 338, after issue was joined, the accused secured quashal of the indictment, held no predicate arose for a plea of jeopardy. In Dunn v. State (Tex. Cr. App.) 242 S. W. 1054, the jury were discharged at the request of or with the consent of the accused, and this court held it no basis for a plea of jeopardy. The same rule, and based on the same principle, applies in a case wherein on appeal a reversal is obtained by the accused. The matters and facts having transpired in the same court, there was no error in the refusal to submit the plea of jeopardy in the instant case, or in the rejection of the special charge referred to.

Separate indictments were returned against appellant and the men who were alleged to be implicated in the robbery with him. Affidavits of the parties to said crime were filed, each asking that the others be first tried. In such case, under article 727, Vernon's C. C. P., it became the plain duty of the court below to...