Calloway v. State, 20409.

• Decision Date: 31 May 1939
• Docket Number: No. 20409.,20409.
• Citation: 129 S.W.2d 646
• Parties: CALLOWAY v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W.2d 646

CALLOWAY v. STATE.

No. 20409.

Court of Criminal Appeals of Texas.

May 31, 1939.

Rehearing Denied June 23, 1939.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

Carl C. Calloway was convicted of burglary as a habitual criminal, and he appeals.

Affirmed.

H. R. Bishop, of Fort Worth, for appellant.

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

GRAVES, Judge.

Appellant was convicted of burglary, and under proper allegations relative to being a habitual criminal, he was awarded a penalty of life imprisonment.

It is shown by the proof that the tool house of Mrs. Max W. Form was entered burglariously and certain plumbers tools taken therefrom, some portion of which tools were traced into appellant's possession. It further appears that one J. B. Hurst was charged by indictment with this same offense.

Appellant's first bill of exceptions complains of the trial court overruling his motion for a severance, and his request that Hurst be placed on trial first for this offense, in order that in the event of Hurst's acquittal he could be used by appellant as a witness upon this trial. This the court refused to do. In the qualification of said bill it seemed that when this cause was called for trial it was the third setting, the other two settings being continued at appellant's request; that when this cause was called the third time Hurst was not present, and his bond was forfeited, and the court ordered this instant case to trial. We think this was correct. To have granted this belated request for a severance would have continued the case, and the statute provides against such contingency. Art. 651, C.C.P. provides: "Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit so stating, and that the evidence of such other party or parties is material for the defense of the affiant, and that affiant believes that there is not sufficient evidence against said party or parties to secure his or their conviction; and such party whose evidence is so sought shall be tried first. Such affidavit shall not, without other sufficient cause, operate as a continuance to either party."

Although it seems that after the jury lists had been struck and handed into the clerk, Mr. Hurst appeared before the jury had been sworn; both sides had announced ready, and the trial was begun and had up to that time occupied about two hours of the court's time, and the court proceeded with this trial. The qualification to the bill also shows that while the jury in this case was out deliberating on their verdict, the man Hurst was brought into court and entered his plea of guilty in this burglary case. It therefore seems apparent to us that he could not have been used as a witness for the appellant in any event. To now send this case back and direct a severance thereof would be to do a useless thing, for no reason for the severance would exist. This bill does not show any error, in our opinion.

Bill of exceptions No. 2 complains of a question being asked one Ruby Calloway as to whether she had talked to Mrs. Carl Form, the objection being that she, being the wife of appellant, had not been interrogated by appellant's attorneys relative to any such conversation. The court's qualification seems to be an answer to such bill. In the qualification thereof it is said by the court that the witness had been divorced from appellant two months prior to the time she was placed upon the stand, and of course was not at such time his wife. In any event the matter was not gone into in any way, and nothing material was developed by such question, and we see no error reflected therein.

Bill of exceptions No. 3 complains that while the defense witness Sergeant Jones was on the stand, and had produced before the jury two sheets of paper showing a record of two arrests of this appellant, he was then asked if such record only covered those two particular days. The court immediately instructed the jury not to consider such question for any purpose. In the first place, under the circumstances, we do not think the question, or its probable answer, evidences any error, it being not only alleged but proven that appellant had committed at least two other offenses of a similar nature, and, also in the second place, we think the careful trial court's instruction would have cured any error, if such there had been.

Bill of exceptions No. 4 is concerned with an effort upon appellant's part by making an affidavit in the form of a sworn admission of his guilt in the two alleged former convictions for a felony, and to thus preclude the State's attorney from introducing the record showing such prior convictions, this proof being offered for the purpose of an enhancement of the punishment. The court allowed the proof of such convictions, and in his qualification of this bill states that neither the defendant nor his counsel ever made any such admissions before the jury, and the defendant did not take the witness stand. It was the State's privilege and its duty to place its whole case before the jury, and we do not see any error in the trial court allowing the State to so do.

Bill of exceptions No. 5 complains because of the fact that while the witness Mrs. Josephine Brackett was on the stand it was shown on her cross-examination by appellant's attorney that appellant, in company with one Howard Matney, had come to see her, and that the appellant had told her that she was too nice a girl to be working in a beer joint, and, while he had no money, he would get his friend to finance a trip for her away from Fort Worth; and that thereafterwards this same Howard Matney came back to see her the next day, and this witness was then allowed to testify that Matney told her that she would get a complete new outfit if she would not appear at a certain trial. "He said if I would not appear at a certain trial against a friend of his, that his friend would buy me a complete new suit of clothes, from the skin out." This was as far as the witness was allowed to go in her testimony. This testimony seems to clearly show that with the connivance of the appellant Mr. Matney was endeavoring to get this witness to leave Fort Worth and not appear against appellant at this trial. This was a very material witness, an eye-witness who identified appellant and his companion Hurst at the scene of the offense, and the first trip to see her by appellant and Matney, and the conversation then had, and the second trip by Matney alone, seems to show that they were endeavoring to get this witness to leave the county and not be in a position to testify against appellant. It seems clear that appellant not only tampered with this witness himself, but authorized the second trip of Matney for the same purpose. This bill shows no error.

Bill of exceptions No. 6...