Crawford v. State, 28917
| Decision Date | 17 April 1957 |
| Docket Number | No. 28917,28917 |
| Citation | 305 S.W.2d 362,165 Tex.Crim. 147 |
| Parties | Debs CRAWFORD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Murray J. Howze, Monahans, D. R. McCorvey, Dallas, for appellant.
Lucius D. Bunton, Dist. Atty., Marfa, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is felony theft, with two prior convictions of felonies less than capital alleged for enhancement; the punishment, life imprisonment.
The accomplice witness James Moncrief testified that he, one Wayne Cawley, the appellant's brother, and the appellant agreed among themselves to steal some oil field pipe; that in compliance with such agreement he rented a truck tractor (hereinafter referred to as a 'truck') from a truck rental service and a trailer from another establishment in Lubbock and came to Reagan County, where the truck broke down; that they returned to Lubbock in the automobile which accompanied the truck, leaving the broken down truck at Slayton, secured a substitute truck, and again returned to Reagan County, where they ate supper, and after dark went to the well where the pipe was located, loaded the pipe, and drove to Post, where they separated from the appellant who unloaded the pipe at a pipe yard. Following this, the parties returned to Lubbock, where the truck and trailer were turned in to the rental agencies. The following Monday the appellant delivered him $400 as his part of the proceeds from the sale of the pipe.
The appellant did not testify in his onw behalf but interposed the defense of alibi, which was by the jury rejected.
It was shown that the appellant escaped jail after his arrest in this case and was extradited from the State of Kansas prior to the trial.
The two prior convictions alleged for enhancement were established.
Appellant's complaints as to the form of the indictment are not of such fundamental nature as would require a reversal when raised for the first time in this Court on appeal. Donahoo v. State, Tex.Cr.App., 285 S.W.2d 952. We find no bill of exception to the form of the indictment in the record, and the transcript shows no exception to the overruling of the motion to quash which, under Article 760e, Vernon's Ann.C.C.P., is requisite to authorize this Court to consider the question without a bill of exception.
We shall now discuss the appellant's contention that the evidence is insufficient to corroborate the testimony of the accomplice witness Moncrief.
The witness Henry testified that he rented a truck to Moncrief at the time and place stated in Moncrief's testimony, that it was reported as broken down at Slayton and replaced by the second truck, and that he sent the witness Owens to Slayton to recover the truck. Owens testified that he did so.
The witnesses Jackson and Griffin testified as to the leasing of the trailer to Moncrief and that upon its return it bore indications of having had oily pipe as its cargo.
Ranger Wood testified that he measured the trucks at the scene of the theft, went to Lubbock and measured the tires on the truck and trailer in question and found them to be almost identical.
Bessie Sibley testified that she was at the eating establishment, near the scene of the theft in Reagan County mentioned in Moncrief's testimony, on the night in question and saw Wayne Cawley and three companions. Her testimony was corroborated by the witness Mamie Yound. The witness Fuller, who was also at the eating establishment, recognized both Cawley and the appellant as two of the four men who were at the establishment together.
The witness Harold identified the appellant as being the person who had unloaded some pipe at the pipe yard in Post on the day in question and testified that his tally on the pipe taken at the time it was received was almost identical to the tally presented by the representative of the owner of the stolen pipe who later appeared at the yard in company with officers.
The witness Boggs testified that the appellant 'or his twin brother' delivered the pipe to the pipe yard in Post on the day in question.
The above is a statement of the testimony which the jury was authorized to consider as corroborating the testimony of the accomplice, and we have concluded that it is sufficient.
The appellant next contends that the trial court erred in excepting Ranger Wood from the rule and allowing him to remain in the courtroom during the trial. Reliance is had upon Wilson v. State, 158 Tex.Cr.R. 334, 255 S.W.2d 520. As we pointed out in the Wilson case and in Perry v. State, 160 Tex.Cr.R. 8, 266 S.W.2d 171, an abuse of discretion is shown only where the witness who has been excused from the operation of the rule in his testimony corroborates the testimony of other Stat witnesses and contradicts the testimony of the appellant or his witnesses. As will be seen from a statement of Wood's testimony above, he did neither, and hence the Wilson case is not here controlling.
Appellant's last complaints relate to alleged errors on the part of the court in 'overruling Appellant's motion for mistrial made after announcement of ready when he discovered the defense witness, B. N. O'Brien, was not in attendance in Court' and 'in sustaining the State's objection to offer in evidence of the application for subpoena of the witness, B. N. O'Brien, a material witness for the Appellant, whose absence was unexplained to the jury.'
In the transcript, we find an application continuance based upon the absence of the witness Travis Henderson, but nowhere therein do we find any mention of B. N. O'Brien, whom the appellant now dlaims was an alibi witness.
Unless there was a motion for continuance based upon the absence of such a witness, the complaints alleged cannot be considered.
We further call attention to the fact that the motion for new trial was not supported by an affidavit...
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