Cole v. State

• Citation: 286 S.W. 204
• Decision Date: 07 October 1925
• Docket Number: (No. 8890.)
• Parties: COLE v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

286 S.W. 204

COLE v. STATE.

(No. 8890.)

Court of Criminal Appeals of Texas.

October 7, 1925.

Rehearing Granted June 25, 1926.

Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.

Ollie Cole was convicted of robbery with firearms, and he appeals. Reversed and remanded.

Dickens & Dickens, of Austin, for appellant.

Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Travis county of robbery with firearms, and his punishment fixed at 5 years in the penitentiary.

There seems no denial in the record of the fact that appellant and a companion, by the display and use of a pistol, held up a group of young men out in the woods on Sunday afternoon and took from them about $95 in money. There had been a crap game in progress, and appellant and his companion had lost their money. There appears to have been anywhere from a half dozen to a dozen parties engaged in the game. After losing their money, appellant and his companion testified that they were told by another party named Walters, who did not testify, that he had seen a man named Davis use a pair of crooked dice in the game. Davis was one of nine men who were held up by appellant and from each of whom he took various sums of money. There were ten counts in the indictment, one charging robbery of all of the parties collectively, and in each of the other nine counts a separate robbery of the individual person was charged. The conviction was had upon the fifth count, which charged appellant with robbery of one Canady. There was no claim on the part of appellant or his companion that Canady used any crooked dice or had any connection with or knowledge of the use of crooked dice, if any.

The bill of exceptions complaining of the refusal of an application for continuance was not approved by the trial court. The second bill of exceptions is so qualified as to make its complaint of no avail. The third bill presents only appellant's objection to the calling of his case out of its numerical order, and, no injury being made to appear, the error, if any, would be harmless.

By several bills complaint is made of the rejection of offered testimony in behalf of appellant, that Davis had been seen using crooked dice in a crap game some six months before the alleged robbery, at a different place. The rejection of the testimony presents no error, and no further discussion will be indulged of the various bills presenting this proposition.

Complaint is made that one Comeskey, a witness for appellant, was not allowed to state his purpose and object in going to see Davis in the afternoon of the alleged robbery and after it occurred, it being stated that the witness would testify that his purpose in going to see Davis was to ascertain if he had used crooked dice, and, if he had not, then to return him the money taken from him by appellant. The principle involved in the voluntary return of stolen property has application in certain cases because of the statute. We are not aware of any cases holding the same principle applicable in robbery cases. If it has application, and if under any circumstances the witness should have been allowed to testify that he went to find out from Davis if he used crooked dice, and if not to return him the money taken from him, this would not be admissible unless it was further shown that such offer was made before the robbery had been reported to the officers or in some way the prosecution begun.

By his ninth bill appellant shows that an effort was made to impeach state witness Duval by a transcript of the question and answer examination of said witness had in the justice court sitting as a court of inquiry. We perceive no error in this matter, which need not be set out at length.

Bill of exceptions No. 10 urges error in the rejection of self-serving declarations of appellant's codefendant, which could not have been introduced in evidence in appellant's behalf.

The complaint of the refusal of a motion to compel the state to elect presents no error. The robbery of all of the individuals named in separate counts of the indictment was but one transaction, and evidently said different counts were inserted to meet the phases of the transaction which might develop on the trial. In such case the state is not required to elect. See authorities collated in Branch's Annotated P. C. p. 233. The objection to certain questions as being leading and suggestive does not seem to us to present any error.

Appellant's defense seeming to rest in part on an effort to return to some of the parties alleged to have been robbed, the money taken from them, it became material to show how soon after the alleged robbery same was reported to the officers by the injured parties, and proof of the fact that same was reported to the officers by one of them as soon as he reached the city of Austin was permissible.

We see no error in permitting the witness Orval Canady to answer the question as to what kind of money, whether gold, silver, currency, was taken from him. We do not think the question objectionable as leading or suggestive; nor are we in accord with the proposition that to ask a witness whether he was afraid or whether he gave up his money because he was willing to do so presents any serious objection.

We are unable to comprehend the materiality of the offered testimony that appellant's codefendant desired a certain party to go to the state witness Davis, and ascertain from him if he had used crooked dice, and that, if he said he had not, then his money would be returned to him.

Under all of our authorities testimony that the accused is under indictment for a felony in the same or another jurisdiction is admissible as affecting his credibility when he becomes a witness in his case.

Appellant complains that the court refused to let him testify that during the holdup he winked at several of the parties who were in line with their hands up. Appellant wished to testify that his intention in winking at them was to give them to understand that he did not mean any harm to them, and that all he wanted was to get back the money he believed he had been cheated out of in the dice game. To permit him to testify that all this was included in and meant by him in a wink would appear to be going beyond a fair interpretation of a wink.

There are several bills of exception complaining of the argument of the district attorney. In no instance was any request, either written or oral, made for an instruction to the jury regarding the matter of the argument. We have carefully considered the things said by the district attorney, and do not deem any of them of reversible character.

The application for continuance, asked in part because of the absence of the witness Walters, was shown to appellant while testifying as a witness, and he was asked why he did not set up in the application certain material matters then stated which in his oral testimony he said he could prove by Walters if present. We do not think it a transgression of the rules of argument for the district attorney to refer in his address to the jury to the fact that the testimony expected of Walters, as stated in the application for continuance, was different from that attributed to said witness by appellant while on the witness stand.

There are a number of complaints of the refusal of special charges, the substance and effect of which was that, if appellant only intended to get back money which he believed he had been deprived of by the use of crooked dice, he would not be guilty of any offense. Before the refusal of a special charge could be held by us reversible, it must be made to appear that such charge has support in testimony and presents an issue which, if decided in favor of the appellant, would justify his acquittal. No witness testified to the use of any crooked dice during the game referred to. Appellant and his codefendant played in the game, and neither of them swore that they saw any crooked dice. The other participants in the game who were witnesses testified that they saw no crooked dice. In giving the greatest weight possible to the testimony of appellant and his codefendant, that Walters told them after the game that he saw Davis use a pair of crooked dice, it would still seem unnecessary to give the special charges complained of, when the unquestioned proof showed that no claim or suspicion was entertained by appellant or his codefendant that prosecuting witness Canady, from whom appellan...