Collins v. State

• Decision Date: 02 June 1915
• Docket Number: (No. 3583.)
• Citation: 178 S.W. 345
• Parties: COLLINS v. STATE.
• Court: Texas Court of Criminal Appeals

178 S.W. 345

COLLINS v. STATE.

(No. 3583.)

Court of Criminal Appeals of Texas.

June 2, 1915.

On Motion for Rehearing, June 25, 1915.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Horace Collins, Jr., was convicted of robbery, and he appeals. Affirmed.

H. D. Wood, Sam S. Beene, A. W. Cameron, and P. O. Lopp, all of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., of Ft. Worth, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at 35 years' confinement in the state penitentiary.

The record is very voluminous, and contains some 47 bills of exception. We do not deem it necessary to state the testimony at this time, as it will be necessary to state the material part in disposing of the various bills of exception.

The indictment in this case contains six counts, the first two charging appellant with being an accomplice to the robbery; the third charges him with being an accessory; while the other three counts charge appellant with being the principal in the commission of the offense. Only the fourth count was submitted by the court to the jury. It reads:

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to the district court of Tarrant county, Tex., that one Horace Collins, Jr., in the county of Tarrant and state aforesaid, heretofore, on the 30th day of September, A. D. 1914, by then and there using and exhibiting a firearm, to wit, a pistol, and another deadly weapon, to wit, an instrument the name, character, and description of which is to the grand jurors unknown, did then and there unlawfully and willfully make an assault upon the person of J. H. Greer, and with said pistol and other deadly weapon did then and there put the said J. H. Greer in fear of life and bodily injury, and by said assault committed as aforesaid, and by putting the said J. H. Greer in fear of life and bodily injury as aforesaid, did then and there fraudulently take from the person and possession of the said J. H. Greer, and without the consent and against the will of the said J. H. Greer, one watch of the value of $50, said watch then and there being the corporeal personal property of and belonging to the said J. H. Greer, with the fraudulent intent then and there on the part of him, the said Horace Collins, Jr., to deprive the said J. H. Greer, the owner of said corporeal personal property, of the value of said property, and with the intent to appropriate the same to the use and benefit of him, the said Horace Collins, Jr., against the peace and dignity of the state."

Appellant moved to quash the indictment, first, contending that it does not state that the offense was committed "anterior to the presentment of the indictment." The indictment alleges that "heretofore, on the 30th day of September, 1914." The word "heretofore" necessarily conveys that the offense was committed prior to the presentment of the indictment. The indictment shows that it was presented in open court on the 10th day of October, 1914, and certainly September 30, 1914, is anterior to the presentment of the indictment. In Wilson v. State, 15 Tex. App. 150, it is specifically held that, even where the indictment or information is filed on the same date as the alleged commission of the offense, an allegation that it was committed "heretofore" on the date named is sufficient. All that is necessary is that the indictment shall show that the offense was committed prior to the presentment of the indictment, and within the period of limitation fixed by law. Subdivision 6 of article 451, C. C. P.

Appellant also contends that the evidence will show that the offense was committed on September 17th, and not September 30th, as alleged. If this was true, and if, in fact, the state was compelled to prove that the offense was committed on the 30th of September, the allegation would in no wise affect the validity of the indictment; but in such event it would only be a case where the evidence failed to support the allegation. However, we do not wish to be understood as holding that it was necessary to prove the offense to have been committed on the 30th of September under the allegation contained in the indictment. Judge White, in his annotated procedure (subdivision 6 of section 343), correctly states the rule to be:

"The time when the offense was committed must be proved, but the exact date alleged in the indictment need not be proven. All that is necessary is that the time of the commission of the offense must be proved, and that the time proved must be a date anterior to the presentment of the indictment, and not so remote as to show that the prosecution for the offense is barred by limitation." Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Arcia v. State, 28 Tex. App. 198, 12 S. W. 599; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160; Temple v. State, 15 Tex. App. 304, 49 Am. Rep. 200.

Neither is the indictment duplicitous nor repugnant, because in different counts it charges appellant with being an accomplice, an accessory, and a principal in the commission of the offense. All the various counts are based on the same identical transaction, the robbery of J. H. Greer of a watch. As said by this court in Shuman v. State, 34 Tex. Cr. R. 70, 29 S. W. 161:

"It is not only allowable, but considered the better practice, to set up the same transaction by as many counts as the pleader may deem necessary to meet the various phases which the proof may possibly develop." Keeler v. State, 15 Tex. App. 111; Shubert v. State, 20 Tex. App. 320; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; Pisano v. State, 34 Tex. Cr. R. 63, 29 S. W. 42; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37; Moore v. State, 37 Tex. Cr. R. 559, 40 S. W. 287; Martinez v. State, 51 Tex. Cr. R. 586, 103 S. W. 930; Robinson v. State, 56 Tex. Cr. R. 63, 118 S. W. 1037; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597.

In the second bill of exceptions it is shown that after announcement of ready for trial, and the jury had been selected and sworn in the case, when appellant was arraigned, he moved to quash and set aside the indictment, because the indictment as read was not a true copy of the one served on him. This would be no ground to quash the indictment if the indictment returned into court was valid. The fact that the clerk did not have him served with a true copy of the indictment as returned into court might be ground for postponement of the case, if appellant had made such motion before announcement of ready for trial. Our statute (article 557) provides that a person shall be entitled to two days after service of copy of indictment to prepare for trial before he shall be arraigned, but it also provides that he may waive the service of copy of indictment. Had appellant moved to postpone the case because he had not been served with a correct copy of the indictment, doubtless the court would have granted the motion. In this case he filed no such motion nor made no such request. In fact, the record discloses that the indictment was returned into the Forty-Eighth district court of Tarrant county on the 10th day of October. Thereafter, on October 17th, appellant appeared and filed a motion requesting that this case be transferred to some other district court in said county, as the said court of the Forty-Eighth district was engaged in the trial of civil cases and would not take up criminal cases during the remainder of the term of said court. The transfer was made. This case was not called for trial until November 24th, at which time appellant appeared and announced ready for trial; a jury was sworn and impaneled, when appellant moved to quash the indictment because the copy of indictment served on him was not an exact copy of the indictment returned into court. His acts and conduct would constitute a waiver in law. Certainly the court did not err in refusing to quash the indictment on this ground, and this was the only motion before the court. And it has frequently been held that it is too late after verdict for appellant to raise the question that he had not been served with a true copy of the indictment. White v. State, 32 Tex. Cr. R. 635, 25 S. W. 784; Bonner v. State, 29 Tex. App. 228, 15 S. W. 821; Rice v. State, 49 Tex. Cr. R. 569, 94 S. W. 1026.

In several bills of exception it is shown that appellant, at the time he was called on to announce for trial, moved the court to require the state to elect upon which count in the indictment it would proceed to trial. Again, at the conclusion of the evidence on behalf of the state, he again demanded that the state elect upon which count it would ask for a conviction; and then again when the testimony was closed the appellant again requested the court to require the state to elect. All these motions were overruled, and appellant cites us to the case of Simms v. State, 10 Tex. App. 131, as sustaining his contention. It must be admitted that, if the Simms Case correctly announces the law, the court erred in refusing to require the state to elect upon which count it would seek a conviction, when it rested its case. The Simms Case was one in which Simms was charged in one count with being the principal, and in another count with being an accomplice to the crime, and it was held to be error not to require the state to elect. But we do not think it correctly announces the law, when the various counts are based on the same transaction, and had never so been held theretofore, nor since the rendition of that opinion. In fact, so far as we have been able to ascertain, the Simms Case is the only case wherein it is held that, where the various counts in the indictment relate to the same transaction, the state will be compelled to elect upon which count...