Barnett v. State, 28248

• Decision Date: 25 April 1956
• Docket Number: No. 28248,28248
• Citation: 290 S.W.2d 234,163 Tex.Crim. 270
• Court: Texas Court of Criminal Appeals
• Parties: James Booth BARNETT, Appellant, v. The STATE of Texas, Appellee.

Page 234

290 S.W.2d 234

163 Tex.Crim. 270

James Booth BARNETT, Appellant, v. The STATE of Texas, Appellee.

No. 28248.

Court of Criminal Appeals of Texas.

April 25, 1956.

Peden, Stevens & Ludtke, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady, Thomas D. White, Joe S. Moss and C. C. Castles, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The conviction is for robbery with firearms; the punishment, seven years.

The evidence conclusively shows that Johnny Will Horn, a Negro, entered a place of business in Houston known as La Rose Cleaners shortly after six o'clock P.M. on December 20, 1954. He was armed with a pistol, and by threat to use it required the lady in charge to open the cash register from which he took the money and placed it in his cap.

The lady in charge and a lady customer who arrived during the holdup were required to cover their heads and, after the robbery, were marched out the side door and down the street.

Several shots were fired after they left the building and the lady customer and a third lady were shot in the back by Horn.

Horn testified as a witness for the State, admitting the robbery and implicating appellant.

According to Horn's testimony the pistol used belonged to appellant; they were drinking together and agreed to rob several places, including the La Rose Cleaners; they went to the scene in appellant's station wagon, Horn driving at the time, and appellant waited while he, Horn, entered; that appellant signaled to him during the robbery.

According to Horn, when he marched the women out of the building through the side door appellant was in the station wagon and he delivered to him the fruits of the robbery.

The ladies testified that they encountered a car in the vicinity of the side door soon after they were marched out, but could not see it because their heads were covered.

Appellant, a white man, did not testify and all of the evidence heard on the trial came from witnesses for the State.

The jury was charged that Johnny Will Horn was an accomplice witness whose testimony required corroboration and was required, in order to convict, to find that appellant was present and advised or agreed to the commission of the robbery or aided in its commission. Also the jury was instructed to acquit in the event of a reasonable doubt as to whether appellant was present or had agreed with or advised Horn to commit the offense.

Appellant urges the insufficiency of the evidence to corroborate the testimony of the accomplice witness Horn, and points to the fact that appellant assisted in apprehending Horn and to the explanation made by appellant, as shown in the testimony of R. H. Brannon.

Other testimony, aside from that of the accomplice witness Horn and the statements attributed to appellant by Brannon, which tend to show appellant's association with Horn and which the State urges tends to connect him with the commission of the robbery includes the following:

Police Officer Bond visited Bob Barnett's Christmas tree lot where Horn was employed on December 20, and soon thereafter discovered that a 38-44 pistol in a black spring holster was missing from the glove compartment of his car.

Appellant was identified by a clerk in a liquor store as the white man who came to the store between 2 and 3 P.M. in a station wagon in company with a colored man who bought a half-pint of whisky.

When the colored man returned to the station wagon the clerk saw appellant looking at a pistol, he then 'passed it over to the negro and he looked at it and handed it back to Mr. Barnett.' They left together in the station wagon.

Milton Steinburg testified that appellant came to his pawn shop about 5 P.M. and purchased shells and fitted them into a pistol he had. Horn came into the store also and said he worked for appellant who had a car lot.

Appellant and Horn came to Thelma Robinson's cafe for colored people where appellant was introduced by Horn as 'his boss, Mr. Peterson.' Appellant was identified as the person so introduced and who stated that he was on the Police Forec; had been for the past 20 years; had an office of his own in the City Hall and was 'over the Homicide.'

Also, according to the witness Thelma Robinson, appellant said 'If you need a lawyer look me up', and he 'had on a gun.'

Appellant and Horn remained in the cafe from 5:30 until 6:02 P.M. The witness testified that appellant and Horn kept watching the clock; that a few minutes before they left appellant said 'Let's go' and Horn replied 'That's okay boss. We have ten minutes yet.'

Appellant came back to the cafe between 7 and 7:30 and asked Thelma Robinson if she had seen Johnny Horn since he left, and he talked to Johnny Horn's brother, Joe.

Joe Horn testfied that appellant asked him if he had seen Johnny, and said 'If you see Johnny tell him to meet me at the used car lot as quick as possible' and appellant bought him a beer.

There was some conversation about the robbery of the La Rose Cleaners and appellant, according to Joe Horn, got red in the face and left without finishing his beer. Appellant stated also 'I have a hundred and some dollars that belongs to Johnny in my pocket.'

Joe Cortez testified that it was twenty or thirty minutes after the robbery and some five minutes after the excitement had died down that he saw appellant in front of his store and 'told him about the excitement that he missed of the hijacking,' and it looked to him like that was the first he had heard of it.

Brannon, a city detective at the time of the robbery, testified that he had been acquainted with appellant for several years; that about 10 A.M. on December 21, 1954, he was at the police station and received a telephone call from appellant in which he said 'I think I know who shot those two women last night.' 'If you come out here by yourself--I will point the negro out to you.'

Brannon said he could not come alone, but must bring his partner. Appellant agreed to this and told Brannon to meet him at Shorty's Barbecue on Wallisville Road as soon as he could get there, and they left immediately and met him there.

Appellant then stated that he knew where the Negro was that he thought shot the two women the night before and said he would go and get the Negro, but wanted his name kept out of it and wanted to do it his own way because the Negro had a gun and he didn't want anyone to get shot.

Appellant, during this conversation, also told Brannon that 'he went to the Christmas tree lot on South Main the previous evening where he met this Negro, Johnny Horn, and another Negro by the name of Langerson, and that they had several drinks out of a pint of whiskey. He said that they drank that pint of whiskey. He said that he and Horn drove around in his car, and Horn showed him a pistol, a bright shiny one, that he had won in a crap game, and Jim told me that * * * he was feeling pretty good, so by that time he fired the pistol out of the car window a couple of times in the vicinity of Sears and Roebuck on Main Street, and he said that later on he took the Negro back over on Lyons Avenue with him, and the Negro told him that he had some clothes in the cleaners that he wanted to pick up, and that he asked him to take him to the cleaners, and he took him to the cleaners, the La Rose Cieaners on Lyons Avenue there, and let him out in front of the cleaners. * * * He said he took him to the La Rose Cleaners on Lyons and Hahlo there, and let him out in front of the cleaners. He said that he had no idea * * * that previous to this he had asked Johnny Horn to give him the gun. H...