Barrow v. State

• Decision Date: 02 May 1934
• Docket Number: No. 16600.,16600.
• Citation: 72 S.W.2d 594
• Parties: BARROW v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W.2d 594

BARROW v. STATE.

No. 16600.

Court of Criminal Appeals of Texas.

May 2, 1934.

Rehearing Denied June 20, 1934.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

Alford James Barrow was convicted of robbery, and he appeals.

Affirmed.

Mays & Mays, of Fort Worth, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for robbery; punishment, ten years in the penitentiary.

We see no need for setting out the facts at any length. The office of the American National Insurance Company in Fort Worth was held up and robbed on the 18th day of April, 1933. Two men acted together in the commission of the offense. Appellant was identified positively as one of the men by two witnesses who were present at the time. The defense was an alibi. Appellant introduced, among other witnesses, his wife, who testified that on the morning of the 18th of April, 1933, she, in company with other members of their family and a Mrs. Sence, went to Dallas and spent the entire day there. She testified that appellant was out of work, and had been looking for work for quite a while; that he had worked for the welfare society, getting paid for his work in food. A large number of witnesses were brought from Dallas who testified to the fact that appellant was there on said day. Most of them based their affirmation as to the date upon the fact that on that day there was a severe hailstorm in the city of Dallas. Unfortunately for the defense, the state produced the weather observer and by him proved that there was no hailstorm in Dallas on or about that date.

There are six bills of exception. Bill No. 1 complains because, after appellant's wife had testified in his behalf that he was not in Fort Worth at the time of the alleged robbery, but had gone to Dallas that morning in search of work, and had been out of work for quite a while, the state was allowed to recall her to the witness stand and ask her if appellant did not buy an automobile two or three days after the alleged robbery, to which, over objection, she was compelled to answer that he did. It is urged this was violative of the statute forbidding the use of the wife's testimony against her husband and contrary to former opinions of this court. We do not so understand either the law or our holdings. There is nothing in article 714, C. C. P., so declaring, save that the last clause of same states that the husband or wife shall in no case testify against the other, except the offense be committed by one against the other. They may witness for each other, by the same statute, and the only question here is, How far legitimate cross-examination may go of the spouse who has voluntarily taken the stand and testified for the husband or wife, as the case may be?

As above stated, appellant's wife testified for him that he did not commit the robbery because he was not in Fort Worth when the robbery occurred, and she went into much detail in setting out his activities on that day and his efforts to get work. After leaving the witness stand, she was recalled by the state and gave the testimony above referred to relative to her husband having purchased an automobile two or three days after this robbery.

Mr. Branch in his Annotated P. C. § 152, states the rule as follows: "The wife of defendant may be cross-examined as to the matters testified by her on direct examination, and the State is entitled to ask her * * * other questions as tending to show the accuracy of her direct testimony, and may apply the usual tests of cross-examination as to all matters germane and pertinent to her testimony given on her examination."

Many cases are cited, among them Dobbs v. State, 54 Tex. Cr. R. 554, 113 S. W. 923, 926, and Swanney v. State, 66 Tex. Cr. R. 293, 146 S. W. 548. We might be justified in saying that it is generally understood that the average thief or robber does not care to work, and the working man is not usually a thief or robber, which facts are known to all men. In this case, while relying chiefly on an alibi, the defense seems to have sought to establish that appellant was a man who wanted work and needed it and sought for it. His wife testified, as above stated, to his previous efforts to get work, and that he was trying to get work on the day of the robbery. The legitimate effect of the testimony of the wife was not only to establish that appellant was away from Fort Worth at the time of the robbery, but also to establish that he was a working man, and was without money, and was in necessitous circumstances at the time. Under the authorities, the state might properly ask the wife on cross-examination as to any matter germane and pertinent to any issue thus advanced by her in her husband's behalf, or any theory of the case in his defense which is supported by her testimony. In Swanney v. State, supra, the defense sought to reduce a murder to manslaughter by the testimony of the wife, to the effect that she told her husband the very morning that he killed her betrayer that such betrayer was the father of her unborn child. The state, in cross-examination of said wife, asked her if she did not tell B. that a month before the killing she told her husband that such betrayer was the father of her child; when she denied having made such statement to B., he was permitted to be used by the state for the purpose of impeaching her, and the same objection to this testimony was advanced as is now advanced on behalf of appellant. It was admitted in the Swanney Case that the object of the defense in having the wife testify that she told her husband on the morning of the killing the facts above stated was to support a plea for a verdict of manslaughter, and the state claimed the right to cross-examine the wife and to impeach her by the introduction of its proof as set out. This court held the matter germane, and that it was proper cross-examination. In the Dobbs Case, supra, we said: "We think all the matters were so inextricably and closely connected with matters testified to on direct examination that her testimony would under any fair rule be admissible. This court has gone quite far enough in limiting the scope of the cross-examination of the wife. We think, however, in this case there can be no doubt that the matters inquired had such relation to the direct testimony of the wife, and were so necessarily important to elucidate the truthfulness of her testimony in chief, and so obviously related thereto, as not to be the subject of substantial complaint."

In the case before us, the testimony that almost immediately after the alleged robbery, in which over $1,500 were taken, appellant— a working man and out of funds, and looking for work, and accepting work whose pay was in foodstuffs—bought an automobile, was a most material circumstance, and directly contrary to the witness' testimony in behalf of appellant upon his claim of alibi, and also as affecting her claim that he was in poverty and need. See, also, Houseton v. State, 83 Tex. Cr. R. 453, 204 S. W. 1007; Cochran v. State, 112 Tex. Cr. R. 390, 16 S.W.(2d) 1065; Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719. In his brief appellant cites Mitchell v. State, 77 Tex. Cr. R. 404, 179 S. W. 116. As we understand that case, it is opposed to appellant's contention here. The wife in that case testified for her husband, admitting adulterous relations with deceased—belief concerning which was relied on to reduce the case from murder to manslaughter. The state was held entitled to cross-examine her as to, and also to prove, matters contradicting this claim.

Bill of exceptions No. 2 sets up that, after having proved by appellant's wife while a witness that he bought an automobile two or three days after the alleged robbery, the state was permitted to recall her and ask her over appellant's objection the following question: "Did you have any conversation with anybody about whether they could take your car away from you on account of the money that came from this robbery?" This bill shows that appellant's objection was that the matter was immaterial and irrelevant, and that this objection was sustained. We find some difficulty in our effort to ascertain in fact the basis of exception as set out in the bill; i. e., whether the complaint is of the fact that the state asked the above question, or because the court declined to declare a mistrial, or because he refused to instruct the jury. As far as we can tell from the bill, the state may have had in mind, in asking the question set out, an inquiry as...