Clark v. State

• Decision Date: 09 November 1889
• Citation: 12 S.W. 729
• Parties: CLARK <I>v.</I> STATE.
• Court: Texas Court of Appeals

12 S.W. 729

CLARK

v. STATE.

Court of Appeals of Texas.

November 9, 1889.

Appeal from district court, Comanche county; T. H. CONNOR, Judge.

W. A. Clark was indicted and convicted of robbery, and appeals. The indictment charged, as a single transaction, an assault, etc., upon one Churchwell and one Taylor, and the taking from Churchwell of a certain pistol, and from Taylor of certain moneys.

Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

1. Appellant's motion in arrest of judgment, based on the supposed insufficiency of the indictment, was properly overruled. It sufficiently charges the crime of robbery under our statutes and decisions. Pen. Code, art. 722; Willson, Crim. St. § 1248.

2. Appellant was alone indicted in this prosecution for the robbery, but the evidence disclosed most fully, as we think, that his brother, one A. A. Clark, was a joint and principal offender with him, prior to, at the time of, and subsequent to, the commission of the crime. Both parties were arrested and tried before an examining court for the crime. The defendant's first bill of exceptions, taken at his final trial before the district court, from which this appeal was taken, shows that the prosecution proposed to prove by one Prewitt that, about 10 days after the robbery, he (Prewitt) arrested the defendant's brother, the said A. A. Clark, and found upon and took from the person of the latter a pistol, which Churchwell, one of the parties robbed, identified on the examining trial as the pistol taken from him by the robbers. A pistol was, by the indictment, alleged to have been taken from the injured parties, together with other property, at the time of the robbery. Defendant's objection to this testimony was that, at the time the pistol was found upon A. A. Clark, the conspiracy, if any, and the crime, had been consummated. While it is a well-established rule that the acts, conduct, and declarations of one co-conspirator, subsequent to the consummation of the conspiracy, are inadmissible as evidence against another conspirator, such rule has never been extended so as to exclude evidence of the subsequent finding of the fruits of the crime in the possession of one of the conspirators whose complicity in the perpetration of the crime has been fully established. It is a circumstance of the most potent character in the identification of the parties, and "any fact or circumstance, which would tend to prove the guilt of the co-defendant, would also tend to prove the guilt of the defendant, and would be admissible against him." Pierson's Case, 18 Tex. App. 524, is directly in point upon the question as here presented. See, also, Jackson v. State, ante, 701, from Parker county, (decided at the present term.) This testimony was legal and admissible, but defendant's bill of exceptions shows that his objection to the evidence was sustained by the court, and the witness was not permitted to testify to the fact. Under such circumstances, we are at a loss to know why defendant's counsel have preserved the bill, and of what they can complain with reference to the matter.

3. The same may be said of defendant's second bill of exceptions, — an objection of defendant to the proposed testimony of Satterwhite, as to matters told him by the witness Charley Clark, because hearsay. The objection was promptly sustained, and Satterwhite was not allowed to testify. As to the witness Charley Clark, he denied most positively that his brothers, at their examining trial, had told him of the whereabouts of the pistol, and denied that he had gone to the place of its concealment, found it, and carried it away. If the prosecution had reason to believe that defendant had so informed Charley Clark, and had induced him to go and get the pistol and take it away, the state's counsel had the right to question him upon the subject. If the weapon had been found by the witness at the place, and upon information derived from defendants, — it being fruits of the crime, — the evidence was admissible, though defendants were in arrest at the time they gave him the information. The prosecution had the right, and it was proper, to question the witness upon the matter; and even if the court, upon the objection of defendant's counsel, had erroneously refused to allow the questions to be asked, the refusal would not be subject to criticism in this court. McDonel v. State, 90 Ind. 321.

4. The state's witness Williams was permitted to testify, over objections by defendant, that two days after the robbery he went to the scene of the crime with Taylor, one of the parties robbed, and others, and there examined the foot-prints or tracks around and about the spot, which tracks he described; that afterwards he (the witness) was present, attending the examining trial of defendant, and noticed the boots of defendant, and the shoes of his brother A. A. Clark, then also on trial; and that, in his opinion, the tracks made at the place of the robbery were made by and corresponded with the boots and shoes of the defendant and A. A. Clark. This testimony was objected to as inadmissible, because it was merely the opinion of the witness, and that opinion is not admissible as evidence. In his standard work on Criminal Evidence, that eminent law writer, Mr. Wharton, says the true line of distinction is this: "An inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts; but, when the facts are not necessarily involved in the inference (e. g., when the inference may be sustained upon any one of several distinct phases of fact, none of which it necessarily involves,) then the facts must be stated. In other words, when the opinion is the mere short-hand rendering of the facts, then the opinion can be given subject to cross-examination as to the facts upon which it is based. Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury." Whart. Crim. Ev. (9th Ed.) §§ 458, 459; Powers' Case, 23 Tex. App. 43, 5 S. W. Rep. 153. In State v. Reitz, 83 N. C. 633, it was held that opinion as to correspondence of foot-prints with shoes is admissible. The almost identical question here raised came before this court in the case of Thompson v. State, 19 Tex. App. 594: "A state's witness, having described the peculiarity of a certain track seen by him at the place of the homicide, was permitted, over objection, to testify that thereafter, at the examining trial, he saw on the foot of one of the defendant's alleged accomplices a boot which would have made such a track as the one he saw at said place;" and the evidence was held admissible.

5. In our opinion, there is no merit in defendant's bills of exception Nos. 3 and 4, relative to the reproduction of the testimony of C. W. Churchwell, which had been reduced to writing upon the examining trial, the said witness having subsequently died. The justice of the peace was properly permitted to state the circumstances attendant upon the taking of the deceased witness' testimony, and to identify the same. As to the objection that the justice's certificate attached to said written testimony is insufficient, it seems that no particular form for such certificate is prescribed by law, and, in our opinion, the certificate of the justice in this instance, as shown in the record before us, is...