Boone v. State

• Decision Date: 13 April 1921
• Docket Number: (No. 6072.)
• Citation: 235 S.W. 580
• Parties: BOONE v. STATE.
• Court: Texas Court of Criminal Appeals

235 S.W. 580

BOONE v. STATE.

(No. 6072.)

Court of Criminal Appeals of Texas.

April 13, 1921.

On Rehearing, November 30, 1921.

Appeal from District Court, Armstrong County; H. S. Bishop, Judge.

Claude Boone was convicted of robbery, and he appeals. Reversed and remanded on rehearing.

Hoover, Hoover & Willis, of Canadian, and J. L. Lackey, of Wichita Falls, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, P. J.

The appellant was convicted for robbery. The opinion on the former appeal is reported in 85 Tex. Cr. R., p. 661, 215 S. W. 310.

On the present trial, the appellant did not testify. The description of the robbery given by Ramey, the injured party, and the accomplice, Beam, are in substantial accord, save that Ramey was unable to identify either of his assailants except the woman who was his companion.

Beam testified that it was his wife who was with Ramey; that through her he learned of the possession of the money by Ramey, and the contemplated trip, and with them planned the robbery, the appellant agreeing to act with them; that he, in an Overland five-passenger car driven by Boone, followed Ramey and the woman. They passed through Washburn, through Claude, and drove on the Ozark Trail in the direction of Fort Worth through Goodnight, where they stopped for gasoline, and then east to the Denver Railroad. They cut across and got ahead of the other car, stopped the car, and waited until Ramey and the woman arrived, and then committed the robbery. After the robbery, Boone drove his car preceding Ramey and the woman and Beam, the latter riding on the running board, and proceeded to take Ramey to a place off the road, where he was tied and left, both cars passing the ranch house with Boone in the lead in returning; and upon reaching the point near Groom, they separated, Boone going north and then west to Amarillo, and Beam and his wife going east through Groom. Beam and his wife and niece came to Amarillo from a distant point in an automobile, and en route agreed to commit the robbery. After reaching Amarillo he met Boone and became acquainted with him. He described several meetings with Boone during his stay in Amarillo prior to the robbery, and described several plans for the robbery which had been found inexpedient and were abandoned. They left Amarillo on the day of the robbery at about 2:30 in the evening.

A bill is presented complaining of the remark of counsel, who stated that —

"If he were accused of an offense of robbery, and had been tried once and was on trial again for the offense, that he would feel that he should give the jury the benefit of all his movements on the day of the robbery and that `they' (meaning the defendant and his counsel) hadn't done it."

This is claimed to have violated the statute prohibiting reference in argument to the failure of the accused on trial to testify.

The statute (article 790, Code of Criminal Procedure) does not prohibit the comment in argument upon the failure of the accused or his counsel to produce evidence. It does prohibit counsel in argument to allude to or comment upon his failure to testify. The plain import of the statute is that counsel for the state, in argument, must refrain from making use of the silence of the accused during his trial against him by direct or indirect means. This statute does not deprive the state's counsel of making in argument legitimate use of the evidence or of the absence of evidence. Wilkerson v. State, 57 S. W. 961; Henry v. State, 54 S. W. 594; Green v. State, 31 S. W. 386; Parker v. State, 39 Tex. Cr. R. 262, 45 S. W. 812; Mathews v. State, 41 Tex. Cr. R. 98, 51 S. W. 915; Branch's Ann. Tex. Penal Code, § 373.

An indirect comment upon the failure of the accused to testify is quite as hurtful as a direct one, and this court has often held that the consequences of the violation of the statute were not to be avoided by the adroitness of counsel in selecting indirect rather than direct means of disregarding it. See Miller v. State, 45 Tex. Cr. R. 517, 78 S. W. 511; Brazell v. State, 33 Tex. Cr. R. 334, 26 S. W. 723; Branch's Ann. Tex. Penal Code, § 374.

The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed. Jackson v. State, 31 Tex. Cr. R. 342, 20 S. W. 921; Arnold v. State, 38 Tex. Cr. R. 7, 40 S. W. 735; Nite v. State, 41 Tex. Cr. R. 352, 54 S. W. 763; Gallegos v. State, 49 Tex. Cr. R. 116, 90 S. W. 492; Huff v. State, 103 S. W. 395; Bagley v. State, 53 Tex. Cr. R. 324, 109 S. W. 1095; Walker v. State, 65 Tex. Cr. R. 615, 145 S. W. 904; Bruce v. State, 53 S. W. 868; Sample v. State, 52 Tex. Cr. R. 505, 108 S. W. 685, 124 Am. St. Rep. 1103; Reinhard v. State, 52 Tex. Cr. R. 63, 106 S. W. 128; Wooten v. State, 50 Tex. Cr. R. 151, 94 S. W. 1060; Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322.

Illustrating the application of this rule, the case of Vickers v. State, 69 Tex. Cr. R. 628, 154 S. W. 578, is useful. The case was one of incest with Ollie Walston, and the following language was used:

"They tell you the prosecuting witness has not been corroborated—they will tell you no one saw the act of intercourse except the two (prosecutrix and defendant). `Tis true that no one was present at the act of intercourse but these two; `tis true that Ollie Walston testifies that no one was present when the defendant told her to take the turpentine except herself and the defendant; but, gentlemen, she has testified to both of these transactions, and they have not dared to put a witness on the stand to contradict her testimony in any particular."

It is obvious from the quotation that contradiction demanded could come from no source save the accused. The court held, and wisely held, that the statute was impinged.

The case of Jackson v. State was one for theft of money. In argument counsel said:

"I say they have not proved that the money was Drew's money. Why have they not had Drew's family here, and the other witnesses, to prove that the money was Drew's money? Don't you know that counsel appreciates the importance of the evidence, and if the money was Drew's money they ought to have had their witnesses here to prove it? And nobody has testified to this jury that the money belonged to defendant, and he has never claimed it since the sheriff took it from him."

The argument was held legitimate. Many like illustrations are available.

The Wooten Case, in which the language used and held not to be against the rule, was as follows:

"Here is another circumstance: Those heelless shoes. How have they undertaken to rebut that evidence offered here by the state? They failed to offer any testimony explaining, and we challenge them to explain. Those tracks leading from where that sack was found in the water up to the door of his house. How do they explain that stove door and smoothing iron found in the sack? Now, do they undertake to rebut that evidence?"

Gallegos Case, where the language used was:

"Where were the defendant and his brother Elijio on the night that Antonio Montoya was murdered? Defendant is a married man, with a wife and children. Why does he not show where he ate his supper on that night? Why does he not show where he slept on that night? Again, I ask where was he on that night? Defendant has friends. Why does he not introduce witnesses to establish his whereabouts on that night?"

In the Nite Case, 41 Tex. Cr. R. 352, 54 S. W. 763, in which there was a conviction for homicide committed in perpetration of a bank robbery, the court said:

"There was no error in counsel in his argument alluding to the fact that defendant had not explained where he was on May 23, 1894, at the time the bank was robbed. It was no allusion to his failure to testify."

In the case before us, the evidence showed that the appellant resided in the city of Amarillo; that he had associates and business connections there; that he was there at the time of his arrest after the robbery. It was in evidence that he had been previously tried for the same offense. He relied on an alibi. We are not in accord with his contention that, in the use of the language which we have quoted from his bill of exceptions, the state's attorney did violence to the statute prohibiting the reference to the failure of the accused to testify. To sanction this view, it would be necessary to assume that the whereabouts of the appellant on the day of the robbery were known to no one but himself. Such an assumption does not arise from the evidence, but the contrary is suggested. He is shown to have had acquaintances. He was in the employ of the Overland Automobile Company, a business concern. His occupation was such as to bring him in touch with many people.

The state's evidence goes to show that he was absent from the city of Amarillo during a large part of the day upon which the robbery took place; that he was seen on the road traveled by the offenders in various places in an Overland automobile. It may be conceded that on some of these occasions there were no others with him, but it is his theory that it was not he that the state's witnesses saw, and that he was elsewhere. To meet the requirements of the law which the appellant invokes, it would be necessary that the state of the evidence be such as to exclude the knowledge of his presence elsewhere by others. Quoting from the opinion of the court written by Presiding Judge Davidson, the court said:

"In order to make this bill complete, it should have been shown by its terms that...