Gonzales v. State

• Decision Date: 08 December 1920
• Docket Number: (No. 5986.)
• Citation: 226 S.W. 405
• Parties: GONZALES v. STATE.
• Court: Texas Court of Criminal Appeals

226 S.W. 405

GONZALES v. STATE.

(No. 5986.)

Court of Criminal Appeals of Texas.

December 8, 1920.

Appeal from District Court, Wichita County; C. C. McDonald, Special Judge.

P. B. Gonzales was convicted of robbery, and he appeals. Affirmed.

Heyser, Hicks, Wilson & Williams, of Wichita Falls, for appellant.

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

MORROW, J.

The appellant was convicted of robbery, and punishment fixed at confinement in the penitentiary for seven years.

One Malca was at nighttime walking on the streets of the city of Wichita Falls, in company with a woman by the name of Ruby Taggart and a man, who was his friend. Malca and his friend were accosted by two men, a pistol was presented, and their property, consisting of money and jewelry, taken from them. The woman fled. It is the state's theory that the woman, Ruby Taggart, the appellant, and a companion named McBride, were acting together. Malca and Ruby Taggart had previously met, and by agreement had occupied the same room at a hotel. He testified that upon her suggestion he and his companion were going in her company to a place where she claimed there was another woman and something to drink. The assailants were strangers to Malca. He reported the robbery, and described the assailants, one as having the appearance of an Indian, and the other a smaller man. Subsequently the appellant was arrested in the city of Ft. Worth, occupying the same room and bed with Ruby Taggart, and in the room some of the property which was taken from Malca was found. Malca identified the appellant as one of his assailants, at the time of his arrest, and subsequently upon the trial.

The indictment charged robbery by assault and violence, and also charged the use of firearms. The crime of robbery by assault is a felony, but not capital; however, when deadly weapons are used it becomes capital. Penal Code, art. 1327. Where the indictment contains both phases of the crime, that charging the use of fireams, which merely enhances the punishment, is not essential, and it would be within the power of the state to abandon that phase and prosecute upon the other. Crouch v. State, 219 S. W. 1099. The state, in the instant case, as we understand the record, pursued practically this course, by announcing that that part of the indictment making it a capital case would not be insisted upon. The indictment was filed during term time, and the case at the same term was tried about 40 days after the indictment was presented. No request was made by either the state or the appellant for special venire. When announcement was made, the appellant advised the court that he would claim the privilege of exercising fifteen peremptory challenges. Being advised by the court he would not sanction this course, but would confine him to 10 such challenges, they proceeded to select the jury, the appellant exercising 8 peremptory challenges. In a capital case the accused is entitled to a special venire; and, assuming that the appellant was to be tried for a capital offense, he would have been within his rights to demand a special venire at the time the case was called for trial. Farrar v. State, 44 Tex. Cr. R. 236, 70 S. W. 209; Burries v. State, 36 Tex. Cr. R. 14, 35 S. W. 164. Whether his failure to demand a special venire at that time was a waiver of that right, under the circumstances, we need not decide, as in our judgment the action of the state, which was sanctioned by the trial judge, amounted to a dismissal of that part of the indictment which made the case capital. At least it amounted to an election upon the part of the state to abandon that part of the indictment, which did not prejudice its right to proceed with the remainder, which charged a felony not requiring a special venire. Weaver v. State, 52 Tex. Cr. R. 11, 105 S. W. 189.

In the indictment appellant's name was spelled "Gonzilas." This was not ground for quashing the indictment. He might, on suggestion, have had his name, properly spelled, inserted. This is statutory. C. C. P. art. 559.

There was no error in charging on the law of principals.

Complaint is made in a bill of exceptions of proof that one McBride, a codefendant of appellant, had been convicted and sent to the penitentiary for the crime of highway robbery. It is not made to appear by the bill that this conviction grew out of the same transaction as that involving the appellant. By another bill the contrary is shown. Such proof would not have been admissible. Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822. The bill leaves us without facts upon which to determine that the evidence was not admissible upon some other phase of the case, or that it was in any way calculated to prejudice the rights of the appellant.

The substance of bill of exceptions No. 5 is quoted thus:

"The prosecuting attorney stated in his closing argument before the jury, `There sits Bulah Gonzales, and she could have taken the stand and told you why the property was in the room of McBride,' which statement was excepted to by the appellant as being irrelevant, immaterial, prejudicial, and not binding upon defendant."

It is said by Mr. Branch in his Annotated Texas Penal Code, p. 204:

"Before a reversal can be had on account of improper argument of state's counsel, it must clearly appear that the remarks were improper, and that they were of a material character, and such as under the circumstances are calculated to injuriously affect the rights of the defendant."

See House v. State, 19 Tex. App. 239, and other cases cited by the author. It is obviously a burden, that the reviewing court cannot assume, to go through the record and determine the relation of an...