Flores v. State

• Decision Date: 12 January 1921
• Docket Number: (No. 6044.)
• Citation: 227 S.W. 320
• Parties: FLORES v. STATE.
• Court: Texas Court of Criminal Appeals

227 S.W. 320

FLORES v. STATE.

(No. 6044.)

Court of Criminal Appeals of Texas.

January 12, 1921.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Jose Flores was convicted of assault with intent to rob, and he appeals. Affirmed.

Nat Llewellyn, of Marlin, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The appellant was sentenced to confinement in the penitentiary for two years upon the conviction of assault with intent to rob. The fact that the appellant went to the country store of McDouell, the alleged injured party, and made an assault upon him, discharging a pistol several times, is conceded. The controversy touching the facts arises about the motive which inspired the assault and the incidents attending it.

Appellant's testimony presents several theories, all of them being opposed to the theory that the motive was robbery. From the appellant's testimony, either of several inferences is deducible: First, that his object was to kill McDouell; second, that his object was to obtain a pistol, which was in the possession of McDouell, his reason for this being that McDouell had threatened to kill the father of appellant, or to kill the appellant, and that it was his desire to disarm him; third, that his presence was with an innocent purpose, but that he was attacked by McDouell on account of pre-existing grudge, and that in this attack McDouell used a knife, and appellant acted in self-defense.

From the state's theory, McDouell kept his money in a certain grip or satchel, which was in his place of business; that this was known to the appellant; and that he fired upon McDouell for the purpose of either killing or intimidating him, so that the money might be obtained. In support of this theory, it was shown, without dispute, that the appellant cut the satchel open and put his hand in it, but did not remove the money; his explanation being that he sought the pistol.

Whether the appellant was under or over the age of 17 years was a question submitted to the court for decision upon evidence which is conflicting. The trial court's decision, based upon sufficient evidence, is binding upon this court. Jefferson v. State, 85 Tex. Cr. R. 614, 214 S. W. 981; Linthecum v. State, 85 Tex. Cr. R. 247, 211 S. W. 456. The indictment, in addition to the count charging an assault with intent to rob, contained one charging an assault with intent to murder. Allegations and the two counts related to a single transaction, and but one count was submitted to the jury. It is doubtful whether the case is one in which an election would be required. Keeler v. State, 15 Tex. App. 111; Robinson v. State, 56 Tex. Cr. R. 63, 118 S. W. 1037; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; Masterson v. State, 20 Tex. App. 574; Vernon's Criminal Statutes, vol. 2, p. 243, note 15, and cases cited. If the contrary were true, however, the qualification of the appellant's bill to the effect that before the appellant introduced any testimony, save by cross-examination of the state's witness, an election was required and made by the state to prosecute upon the charge of assault with intent to rob, would meet and overcome appellant's complaint of failure of the court to require an election. Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; Mueller v. State, 69 Tex. Cr. R. 158, 153 S. W. 1142; Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774.

The state opened its case with the testimony of the injured party, McDouell. On cross-examination by appellant, it was proved by the witness that he had on a former occasion accused the appellant of burglarizing his store, and had had him arrested and his house searched, but that he was discharged because of want of sufficient evidence to convict him. The appellant introduced the testimony of Bresnaham to the effect that, when he arrested the appellant for the assault in question, he was told by the appellant that he intended to kill McDouell; that he said:

"I don't want the son of a bitch's money; I wanted that six-shooter he kept in there."

It was also proved by the same witness that on a former occasion he had arrested the appellant upon the request of McDouell for robbing his store. In this connection the witness said:

"I made an investigation, carried the boy home with me, and kept him all night, but found no evidence."

On cross-examination, the state proved by the same witness that at the time McDouell told him of the former robbery the witness saw a place dug underneath the front door of McDouell's store, and that the hole was not large enough to admit the entrance of any one other than a boy or a small man. This, in our opinion, did not, under the record before us, transgress the rule inhibiting the introduction of the details of other offenses. The introduction by the appellant of evidence upon the subject of the former charge of burglary, and the fact that the witness in question (that had made the arrest) had made the investigation, rendered it competent for the state to have the witness disclose the character of his investigation to the extent that it was done, by virtue of a statutory rule permitting the introduction of parts of the same act,...