Chancey v. State

• Decision Date: 09 June 1909
• Citation: 124 S.W. 426
• Parties: CHANCEY v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 426

CHANCEY v. STATE.

Court of Criminal Appeals of Texas.

June 9, 1909.

Rehearing Denied January 26, 1910.

Appeal from District Court, Angelina County; James I. Perkins, Judge.

Falvey Chancey was convicted of robbery, and he appeals. Affirmed.

E. J. Mantooth and Johnson & Edwards, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is an appeal from a conviction for robbery.

The indictment charges robbery by assault and violence, and follows the language of the statute. Article 856, White's Ann. Pen. Code. Appellant made a motion in the court below to quash the indictment because it omitted to charge that the property was taken against the will of said Harris. It is true that the form of indictment for robbery by assault as laid down in section 1464, White's Pen. Code, uses the term against the will of the party robbed. However, we are of opinion that this allegation is unnecessary. The language of the article above quoted is as follows: "If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use he shall be punished," etc. Now the indictment alleges that the property was taken by assault and violence, and by putting in fear of life or bodily injury, with the fraudulent intent and without the consent of the owner, to deprive the owner of the value of and to appropriate it to the use and benefit of the appellant. We think to use the words "against the will" of the party would be surplusage, where the indictment alleges that the property was acquired by assault and violence. We, therefore, hold that the bill of indictment is a valid indictment, and that it is not necessary to allege that the property was acquired against the will of the party.

On the trial of the case, before announcement of ready on the part of appellant, he made an application for a continuance, which was by the court overruled. Appellant reserved a bill of exceptions to this action of the court, and the motion is now before us to be considered on this appeal. The bill of indictment in this case was returned in the district court of Angelina county on May 5, 1905. The defendant was not brought to trial until the October term, 1907. We are not advised by anything in the record as to whether this was appellant's first or second application for a continuance. He says in his application that he makes this his first or second application for a continuance, as may be determined by the court. In the state of the record we cannot hold that this was the first application for a continuance. However, whether it is the first or second application, we do not think the testimony of the witness McDonald, for whose testimony the application is sought, was in any way material to the appellant in the trial of the case. Without reference to the diligence the appellant asked for a continuance to secure the testimony of the witness J. C. McDonald, by whom he expected to prove that the said McDonald will testify that he had been indicted for this identical robbery, and had been acquitted; that he would swear that he was not present at the time that John Harris, the party alleged to have been assaulted, was robbed; that he did not see or know that a robbery had been committed, or that one was going to be committed; that he did not discuss the question of robbing said Harris before or after the robbery with the defendant; that he had no connection with said robbery whatever; that if said defendant robbed, or assisted in robbing, the said John Harris, the said witness knew nothing about it. Appellant further in said motion set out the testimony of the said McDonald as given by him in the trial of himself for said robbery, and he claims that this testimony was material to his defense. Without setting out the testimony as disclosed by the said motion it will only be sufficient to state that the said McDonald on his trial testified that, on the night of March 15, 1905, he was afoot, going out of the town of Lufkin to a sawmill situated some mile and a half or two miles north of Lufkin; that after he had crossed the Cotton Belt Railroad close to some box cars standing on the side track, he heard some one groaning, and he walked out to where he located the noise and saw a man lying on the ground, who afterwards turned out to be the John Harris who claimed to have been robbed; that he assisted the said Harris to get up and supported him as he walked to his camp; that when the said Harris first came to himself the said Harris told him (McDonald) that he had been run over and knocked down by a car, and that another man who was with him had been killed. McDonald further testified that after he had carried Harris to his camp which was located but a short distance, the said John Harris immediately took hold of McDonald, called to his wife to bring his pistol, and accused the said McDonald of assisting in robbing him. The said McDonald further testified that he did not know that the said Harris had been robbed until this accusation had been made against him when they got to his camp; that he was not with the party that robbed the said Harris, knew nothing about it; did not know whether Falvey, the appellant, or any one else had robbed him; had had no talk with Falvey on that night before or after the robbery; had not been in company with the said Harris or the said Falvey before the robbery and knew nothing about it.

On the trial of the case the witness Harris testified that he was in the town of Lufkin on that night. That he had arrived in the town a few days before that, was camped out some 500 or 600 yards north of the business portion of the town. That he was a horse trader, and had mules for sale. That he had gone down in town after supper to see a man by the name of Simms to sell him a mule. That he got in company with the appellant, who was running a livery stable or barn, and that the appellant told him that he would perhaps buy a horse or two, or a mule, from him. He remained in company with the appellant until about 1 o'clock. That he went into several saloons with the said Falvey, and took some drinks. While walking around they passed by a boy playing some kind of a musical instrument, when appellant remarked that that boy was a dangerous character, and that he was afraid of him. When John Harris started to his camp and spoke of going, appellant remarked that he lived in a little white house opposite to where Harris' camp was situated, and that he was afraid of that boy, and that he would like to have Harris' company home. Shortly after this appellant and the said Harris started out toward his camp. Here the witness Harris says: "We walked right on up to the Green Rock saloon, turned around the corner, right along the side of the Green Rock saloon until we come to the wagon crossing, and we crossed the railroad, and when we got to the last track, or next to the last track, we turned up the railroad along a string of cars, and as we got to the end of these cars, appellant remarked, `Let's cross over and get in the path.' We crossed over the railroad, walked out about 20 feet from the end of the car. The appellant was on the left side of me as we walked up there, and as we walked out to the path appellant looked over his right shoulder, and says, `There he is now,' and as he did he laid his hand on my shoulder. I looked, and didn't see nobody at the end of those cars, and when I turned that throwed my right side next to appellant, and I turned and looked, and when I did this I saw a man, and it looked as though he was just raising from the end of the car, and as he did I looked back at appellant to see what he was doing standing there—if he expected trouble or something. I supposed that he had made same preparation to protect himself, but he still stood there...