Bouldin v. State

• Decision Date: 26 May 1920
• Docket Number: (No. 5835.)
• Citation: 222 S.W. 555
• Parties: BOULDIN v. STATE.
• Court: Texas Court of Criminal Appeals

222 S.W. 555

BOULDIN v. STATE.

(No. 5835.)

Court of Criminal Appeals of Texas.

May 26, 1920.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Zara Bouldin was convicted of robbery with firearms, and he appeals. Reversed and remanded.

W. S. Holman and C. M. Gaines, both of Bay City, for appellant.

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

DAVIDSON, P. J.

This conviction was had for an alleged robbery by firearms. This is a companion case to Hilliard v. State, 222 S. W. 553, this day decided. The facts are substantially the same in both cases.

The theory of the state was that appellant and Hilliard robbed a party named Weldon. Weldon testified that on the night he was robbed he was at a cold drink stand and treated appellant, and displayed some money; that they went thence to a house occupied by Hilliard, stopped for a moment or so; that appellant and Hilliard had a conversation; they went thence to another house, stopped a moment, and went to the place of the alleged robbery; that when they reached this place near the depot they stopped to attend a call of nature, when a party came upon them, presented a pistol, and demanded they put their money in a hat which he presented; that appellant placed what money he had in it; and that he (Weldon) did the same thing and they all separated. It seems that Weldon did not identify Hilliard as the party who presented the pistol, but gave a description of his costume. Among other things, he said he was wearing a certain described hat; that when the robber left Weldon remarked to appellant that he was going to the sheriff and have appellant arrested, believing that he was connected with the robbery. This was denied by appellant. They separated. Appellant went home and went to bed. Appellant's testimony is to the effect that Weldon desired to find a woman with whom to spend the night; that they went to the house where Hilliard was stopping to find a woman named Hughes; that when they reached the house they ascertained the fact that she had an engagement with Hilliard; that they then went to another house hunting another woman. When they reached that point they ascertained that she had an engagement, and in both instances the men were present. He says they left, going to another part of the town in search of girls, and reached the point where they were robbed. He describes the acts and incidents of the robbery about as did Weldon.

Later during the night the sheriff went to appellant's home and arrested him. He also went to the house occupied by Hilliard and arrested a man named Harris and carried him to jail. This was on such information as he obtained from Weldon. Hilliard was present at the house at the time of the arrest of Harris and remained. After reaching the jail Harris was not incarcerated, but was permitted by the sheriff to go free. Subsequently he arrested Hilliard. After arresting Hilliard he obtained what is shown in the record to be a confession from Hilliard under circumstances that would render it clearly inadmissible, except for the fact the sheriff said by reason of the confession he discovered or recovered a certain amount of money in pursuance of this information. It may be stated at this point that this money was not identified as the money taken from Weldon. If so, it was so indefinite that it is a serious question as to whether this was the money taken from Weldon. He also found a pistol later at the residence of Hilliard's father which had been recently discharged. It is asserted by Weldon that the man who robbed him fired one shot after the robbery was committed. It is unnecessary in this case to discuss the preliminaries and the predicate shown by the state for its introduction. Appellant was not present when the confession was made, was in jail, had no connection with it, and the confession did not implicate him. The various questions raised with reference to these matters are not discussed for the broader reason that this confession as it came was not introducible against the defendant. The state's theory was that appellant was criminally connected with Hilliard in the robbery, that they planned it, and that Hilliard robbed Weldon in pursuance of that agreement, and appellant was present. There is no contention that appellant had any of the money taken from Weldon. The evidence in this connection, to say the least of it, is not of a very cogent nature. Appellant was with Weldon when he went to the two houses mentioned, was with him at the time of the robbery, and had had a conversation with Hilliard at the house where the woman Hughes lived, whom he says they went to see to make an engagement for Weldon. This is weak evidence of a conspiracy to rob Weldon, but in any event the conspiracy could not be proved by the confession of Hilliard even had he implicated appellant in his confession. It was but the narration of past events in which Hilliard participated. The acts and conduct of a coconspirator after the transaction are not admissible as a general rule, and under the cases of Choice v. State, 52 Tex. Cr. R. 287, 106 S. W. 387, and Spencer v. State, 52 Tex. Cr. R. 291, 106 S. W. 386, this character of testimony would not be admissible. See, also, Draper v. State, 22 Tex. 401; Couch v. State, 58 Tex. Cr. R. 505, 126 S. W. 866; Lauderdale v....