Everett v. State

• Decision Date: 30 March 1932
• Docket Number: No. 14489.,14489.
• Citation: 57 S.W.2d 140
• Parties: EVERETT v. STATE.
• Court: Texas Court of Criminal Appeals

57 S.W.2d 140

EVERETT v. STATE.

No. 14489.

Court of Criminal Appeals of Texas.

March 30, 1932.

Rehearing Denied February 15, 1933.

Commissioners' Decision.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Jim Everett was convicted of robbery, and he appeals.

Affirmed.

A. R. Stout, of Ennis, and Tom Whipple, A. D. Emerson, John Hatter, and Will Hancock, all of Waxahachie, for appellant.

Archie D. Gray, Co. Atty., of Waxahachie, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

J. C. Rose and Spencer Adams, both of whom were white men, and Alto McGowan, a negro, testified for the state, in substance, as follows: The three of them came from Dallas into Ellis county on the night of January 28, 1931, to make a delivery of five cases of whisky at the underpass between Red Oak and Waxahachie, Tex. The whisky was to be delivered to Stacy Childress, whom the parties believed to bear the name "Bill Green." They arrived with the whisky some time between 7:30 and 10 o'clock at night, and, being apprehensive, they went on up the road two or three miles, put the whisky out of the car, and came back and stopped at the car occupied by Stacy Childress. While talking to Childress, appellant and one J. W. Cadle came running up from a Ford roadster they had parked up the road behind Childress' car, and told them to "stick them up". Appellant had a flash-light and J. W. Cadle a pistol. Cadle directed the pistol at the witnesses. Childress searched Adams and Rose. He took 55 cents off of Rose but put it back in Rose's pocket, saying that he was a "cheap s____ of a b___ of a bootlegger." He got nothing off of Adams. Childress then searched Alto McGowan and took $95 from him. The witnesses were then told to get down the road, and they left in their car, going toward Dallas. A Chevrolet roadster followed them for a long way toward Dallas. After reaching Dallas, the witnesses immediately turned around and came to Waxahachie, where they reported the robbery to the officers.

Stacy Childress, an accomplice witness, testified for the state, in substance, as follows: Pursuant to an agreement with J. W. Cadle, he had arranged to buy the whisky from the negro Alto McGowan. He had called Cadle from Waxahachie and told him to meet him at the underpass, it being the purpose of the parties to "hold McGowan up" and take the whisky away from him. Cadle was to notify the other participants. Appellant came to the place after he and Cadle had already gotten there. One Billie Batchler, who was a peace officer, was present in a Ford roadster, which was parked up the road. After he (Childress), Cadle, and appellant had held the parties up and had taken $95 off of McGowan, he (Childress) went up the road to where Batchler was and gave him the money. Batchler said: "Let me keep this money. They might catch you and there might be something noised about it." Batchler said he could split the money later. Appellant and Batchler then got in appellant's car and followed Rose, Adams, and McGowan along the highway toward Dallas. He (Childress) and Cadle took the whisky and brought it to town. He got six and one-half gallons of the whisky, which he carried to his father's house, and Cadle carried the balance away in Batchler's car.

Appellant testified, in substance, that he had been a peace officer in Ellis county for a number of years; that at the time of the alleged robbery he was not working in that capacity, and held no deputyship of any character; that he was present near the underpass in Batchler's car when a Ford Coupé approached and stopped for a minute; that the Ford went on down the road; that he was advised that Batchler and the parties present were expecting to capture a load of whisky; that Batchler was a peace officer; that, after the car had gone on down the road, Childress advised him that the parties said they had not brought the whisky; that the car turned and went back toward Dallas; that he and Batchler got in his Chevrolet roadster and took out after the parties in an effort to catch them, believing that they had whisky in the car; that they were unable to overtake them; that they then turned around and drove back to Waxahachie; that, if Stacy Childress and J. W. Cadle found any whisky on the road that night, he did not know anything about it; that Cadle did not have any pistol or gun on him that he knew of; that his original purpose in going to the underpass was to take one Reynolds out there; that, after Reynolds started back to town with another man, he had nothing else to do, and remained to watch the officer and his associates capture the whisky; that no one delivered any money to Billie Batchler in his presence; that he saw no robbery committed, and participated in none; that he was not a party to a conspiracy to rob the injured party.

Bills of exception Nos. 1 to 6, inclusive, and Nos. 9 and 19, relate to the action of the court in refusing to charge the jury, in effect, that the witnesses McGowan, Adams, and Rose had been impeached, in that they had been convicted for violating the liquor laws, and were shown to be engaged in the whisky business in Dallas. It was shown by the state on direct examination of the witnesses Rose, McGowan, and Adams that they had been convicted for violating the liquor laws. The state also showed that these witnesses were then engaged in the illicit traffic of intoxicating liquor. Appellant excepted to the court's charge, as shown by the bills of exception referred to, for its failure to instruct the jury as follows: "You are instructed that if you find that said J. C. Rose's testimony has been impeached by proving that he is engaged in a business that is a crime under the laws of Texas, and was so engaged on the day of the matters alleged in the indictment, then it is your province to consider such testimony impeaching or tending to impeach the said Rose, and from it it is your duty to decide whether or not such impeachment, if any, does or does not absolutely disprove or falsify his evidence given on the trial of this cause."

A similar charge was sought as to each of the witnesses mentioned in the bills of exception. In support of his contention that the charge should have been given appellant cites Elkins v. State, 48 Tex. Cr. R. 205, 87 S. W. 149, 150. In that case the accused offered proof which tended to impeach the prosecuting witness. The court instructed the jury, in substance, that a witness might be impeached by showing that she had made other and different statements out of court, and that such impeaching evidence was to be considered by the jury, for what they might think it worth, for the sole purpose of enabling them to judge of the weight to be given to the testimony of the witness so impeached. The charge was objected to on the ground that it limited the consideration of the impeaching testimony simply to the weight the jury might attach to the evidence of the prosecutrix, and did not permit the jury to consider such testimony for the purpose of affecting her credibility. In holding that the charge was too restrictive, this court expressed the opinion that, whenever the testimony of state's witnesses is attacked by showing contradictory statements, the charge contended for by the accused in Elkins' Case should be given. In concluding that error was presented, the court, speaking through Judge Davidson, said: "But the charge here given withdraws from the jury that phase of the law which authorized them to consider the impeachment of a witness as affecting her credibility." The statement in the opinion that the charge contended for should be given in a case where the witnesses for the state had been impeached was not necessary to a disposition of the case. The trial court, having, in Elkins' Case, undertaken to submit an instruction covering the impeaching testimony, fell into error in advising the jury that it could only be considered as affecting the weight to be given to her testimony. This was manifestly incorrect, as the jury had the right to consider the testimony of the witness as affecting her credibility. The opinion is expressed that Elkins' Case cannot be taken as authority supporting appellant's contention. In any event, it is the general rule that, if the impeaching testimony could only be used by the jury to impeach the witness, it is not necessary to charge on the subject at all. Branch's Annotated Penal Code, § 180; Brown v. State, 24 Tex. Cr. R. 170, 5 S. W. 685; Thompson v. State, 55 Tex. Cr. R. 120, 113 S. W. 536. The impeaching testimony could not have been used by the jury for any other purpose than to have impeached the state's witnesses.

Bills of exception 7 and 8 recite that appellant objected to the charge of the court for its failure to limit the effect of proof that he had been indicted in Henderson county in 1931 for accepting a bribe. The court qualifies the bill of exception as follows: "The matters complained of in the above bill of exception were neither objected to by defendant nor was any exception taken in any form to any action of the court in the matter." An examination of the appellant's exceptions to the charge of the court fails to disclose any objection to the charge for its failure to limit the testimony in question. No special charge covering the subject appears to have been presented. Article 658, C. C. P., provides that, before the charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same, and that he shall present his objections thereto in writing, distinctly specifying each ground of objection. Article 666, C. C. P., requires that all objections to the charge, or to the refusal or modification of special charges, shall be made at the time of the trial. The necessity of compliance with the provisions of the statutes mentioned has been often...