Barber v. State

• Decision Date: 25 June 1902
• Citation: 69 S.W. 515
• Parties: BARBER v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

69 S.W. 515

BARBER v. STATE.¹

Court of Criminal Appeals of Texas.

June 25, 1902.

Appeal from district court, Llano county; M. D. Slator, Judge.

Elmer Barber was convicted of burglary, and he appeals. Affirmed.

McLean & Spears, for appellant. Jas. Flack and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant made a motion for continuance on account of the absence of a great number of witnesses. Concede the question of diligence; most of the testimony was of an impeaching character, and, as a usual proposition, a case will not be reversed because of the overruling of a motion for continuance to procure such testimony. Where the testimony set out is not of an impeaching character, we do not consider it material.

By bill of exceptions, appellant raises the question as to the admissibility of what Ether and Underwood Barber said to witness Bart Cooper in regard to moving the alleged stolen corn. This witness was an accomplice, and testified that a day or two after the burglary and theft of the corn, and when the owner and sheriff were looking for the same in the pasture where it was hid, Ether and Underwood Barber, in the absence of defendant, said to him "that they had to go and move the corn, and, if ever you tell it, we will have to kill the one that tells." Appellant objected to this on the ground that he was not present at the time, and, if there had been a conspiracy to commit the burglary and steal the corn, this had been consummated, and what was done or said afterwards by either of the conspirators could not be used in evidence against one of the conspirators who was absent at the time. This bill does not exclude the idea that this testimony of the agreement between Ether and Underwood Barber with Bart Cooper in the absence of the defendant was communicated to and acted on by him. So the bill in that respect is not complete. If we recur to the evidence, it will be seen that this same agreement was had between the parties when Elmer was present, and, moreover, that Elmer and the others went together at night and removed the corn. If it be conceded that the conspiracy did not extend to securing the fruits of the crime, still, if the parties, after the consummation of the burglary and theft, fearing detection, agreed to remove and hide the corn, and in pursuance of this they did so,—Elmer acting with the others,—the fact that the matter was mentioned at one time between Ether and Underwood Barber to Bart Cooper in the absence of Elmer would not work any injury to appellant. But we do not believe the conspiracy was at an end, as the parties appear to have acted together in the subsequent removal of the corn to escape detection,—as stated before, Elmer acting with the others. So what was previously done between the others would be binding on appellant. O'Neal v. State, 14 Tex. App. 582.

Appellant strenuously insists that the court committed an error in regard to the following testimony, to wit: The state introduced Bart Cooper. Defendant, on cross-examination of this witness, asked him the following question: "On Sunday following the burglary on Monday, the 17th, didn't you tell Marsh Bawcom and others that it was no use for the people to accuse the Barber boys of the burglary, because you knew it was not true; that you slept with Ether Barber the night of the burglary; and that he was at home all night?" To which witness answered, "No; I didn't say that." "And didn't you, some time after the defendant was arrested, on the road between Loyal Valley and the Rountree ranch, state to Jeff Nard that you had nearly made yourself rich by testifying against the Barber boys, and that you had already got $300 to turn state's evidence, and that Bob Moseley had agreed to put up $1,500, and a saloon man in Llano was to put up $1,500, if you would testify against the Barber boys?" To which the witness answered, "No; I didn't tell it that way." And the court, over defendant's objections, on redirect examination, in explanation of what he did say, permitted the witness to testify as follows: "I told the Bawcoms that I slept with Ether Barber on the night the offense was committed. That what I told them was not true. My reason for telling them that was that I didn't want to tell them what I knew about taking the corn. Up to that time I hadn't told anybody. I told Jeff Nard they didn't pay me anything. He said he had heard that I had got $400. I said, `Yes; I'll get rich out...