Harris v. State

• Decision Date: 10 March 1909
• Citation: 117 S.W. 839
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W. 839

HARRIS v. STATE.

Court of Criminal Appeals of Texas.

March 10, 1909.

Appeal from District Court, Howard County; James L. Shepherd, Judge.

John M. Harris was convicted of robbery, and appeals. Reversed.

Goodson & Goodson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Howard county upon a charge of robbery. There were two counts in the indictment. The first only was submitted to the jury. This count, omitting the formal parts thereof, was as follows: "That John Harris on or about the 4th day of February, 1907, and anterior to the presentment of this indictment, in the county of Howard and state of Texas, did then and there unlawfully and willfully make an assault upon the person of J. J. Burleson, and then and there by said assault, and by violence to the said J. J. Burleson, and by putting the said J. J. Burleson in fear of life and bodily injury, did then and there fraudulently take from the person and possession and without the consent and against the will of the said J. J. Burleson, $12 in money of the value of $12, and $100 in money of the value of $100, the said property then and there being the corporeal personal property of the said J. J. Burleson, with the fraudulent intent then and there of him the said John Harris, to deprive the said J. J. Burleson of the value of same and to appropriate the same to the use and benefit of him the said John Harris." On a trial had in the court above named on the 11th day of March, 1908, the jury found appellant guilty and assessed his punishment at confinement in the penitentiary for a term of five years.

The facts of the case are very unusual and are, indeed, strangely singular. Burleson was shown by the evidence to have been quite an old man, almost 70 years of age. He resided some 16 or 18 miles from the town of Big Springs on a farm and had suffered some years before from something in the nature of paralysis and perhaps some form of rheumatism. The rigid cross-examination to which he was subjected impresses us that his memory as to many of the details of the events described by him was very hazy and uncertain, though his testimony touching the substantial facts of the robbery was not so variant or confusing as perhaps to destroy the effect of the weight to be given the evidence. He testified, in substance: That on the day of the robbery the appellant, who had been working for him, and to whom he had recently sold his cotton crop, came to his place, and after some conversation said to him that he had some liniment at his house, and that if he (Burleson) would come down he would rub his back. That he went to appellant's house with him and sat down by the stove. That appellant presented a gun that he had just before borrowed from Burleson, and said to him, in substance, that he had tried to disgrace his family, and that he had to pay for it, and demanded his money. That he finally produced his pocketbook, which contained a $10 bill and some silver, and appellant's wife took the pocketbook and got the money out of it. That appellant then asked him for a check which had recently been given him in payment of some corn, and this was obtained from the pocketbook by appellant's wife. Thereupon appellant said to him that he had to give him a check for $100 which he had in the bank at Big Springs. That he could not write, and appellant turned the gun over to his wife, who still held it pointed on him, and appellant wrote the check for $100 and compelled him (Burleson) to sign it. That after this, and by the use and exhibition of the weapon, accompanied by threats of taking his life, appellant compelled him to get in the wagon on the front seat, with his wife driving and appellant sitting or standing behind him with the gun, and go to the town of Big Springs, some 16 or 18 miles distant. That after they got to Big Springs, which was at about 12 o'clock, or probably some time thereafter, they drove to near where the bank was, and appellant and Burleson went into the bank, Burleson got the $100, came out to the front of the bank, and gave it to appellant. That after this they went around town together, going upstairs to one place, and later to a saloon, where they took a drink, and, after something like a half hour or an hour, got in the wagon and drove home. On this drive appellant and Burleson sat together in the seat. That after they had returned to Harris' house, appellant compelled him to give him (appellant) a bill of sale to a couple of mules that he owned, and that after this was done, and after refusing the request of Burleson to turn his gun over to him, Burleson was permitted to go to his house. But during all this time Burleson says that he was in fear of his life and did and performed all and singular the acts and things, which we have briefly stated here, in fear and on the belief that his refusal so to do would end in his death.

In his charge to the jury, the court instructed them, among other things, that if appellant "did then and there fraudulently take from the person and possession and without the consent and against the will of the said J. J. Burleson $12 in money, of the value of $12, and you further believe that he continued to put the said J. J. Burleson in fear of his life and bodily injury, and did then and there fraudulently take from the person and possession and without the consent and against the will of the said J. J. Burleson $100 in money of the value of $100, the said property then and there being the corporeal personal property of the said J. J. Burleson, with the fraudulent intent then and there of him, the said Jno. Harris, to deprive the said J. J. Burleson of the value of the said $12, and the said $100, and to appropriate the same to the use and benefit of him, the said John Harris, then you will find the said John Harris guilty of robbery and assess his punishment at confinement in the state penitentiary for life, or for a term of not less than five years."

The questions raised on appeal are presented under many forms, are well raised, and on oral argument before the court were discussed with such clearness as to be of much assistance to us in their determination. Except the last matter discussed, all the questions revolve around the same general subject. The first four bills of exception relate to and present different views and aspects of the same general question. It is stated in the first bill of exceptions that, when the state had begun its testimony, it put as its first witness on the stand the alleged injured party, J. J. Burleson, and the said Burleson testified as follows: "The defendant told me that morning that he had some liniment, and if I would come to his house he would rub my back, and I went to his house and went in and took a seat by the stove and talked to his wife until he came. At the time of telling me to come to his house, defendant had borrowed my shotgun. I had been to his house but a very short time, when defendant came to the door opposite where I was sitting and squatted down on his feet in front of the door and threw down on me, and right in my face, the shotgun he had borrowed from me, which was loaded with duck or rabbit shot, and said to me: `You God damned old son of a bitch, you have tried to disgrace my family, and you have got to pay for it. I want your money.' I said to him: `Mr. Harris, what do you mean? What have I done?' And he said: `By God, I want your money.' And he came in the house, still holding his gun cocked on me, and told me to hand over my money to his wife, and I pulled out my purse and handed it to her, and she took out of it a $10 bill and a silver dollar and some smaller silver change and kept possession of it and handed the purse back to me. The defendant then said to me: `You have got a check. By God, hand that over.' And I turned over to him the check for $47.50 that had been given me on the First National Bank of Big Springs, Tex., by a party some days before, and which the defendant knew of. He then said: `You have got $100 in the bank, and I must have that.' And I had $100 in the bank, and he then said: `Write me a check on the bank for that $100.' And I told him I could not write, and he said, `By God, he could,' and he then handed the gun, which was still cocked, and which up to this time he had kept leveled at me, to his wife, and she then held it on me while the defendant sat down and wrote out a check on the bank for $100, and told me to sign it, which I did. After signing this check, he told me, by God, I had to go to Big Springs with him to cash the check, and that he was going to take me along in his wagon, and he was going to take the gun along, and if on the road there or while in Big Springs, or on the way back, I in any way tried to raise an alarm, or give him away, or not do just as he told me to, that he intended to kill me, and he made me get in his wagon and his wife sit on the front seat by me and did the driving, and he and his girl sat behind, where he had the shotgun and his pistol, which in the house I had seen him, before we started, place in the waistband of his pants. And in that way we came to Big Springs, a distance of about 16 miles, and drove the wagon to a point near the West Texas National Bank across the street just opposite the First National Bank, when he made me get out, and he went right along with me, and we both entered the outer door and into the First National Bank, and the defendant stood somewhere close to the other door, and I went either to the cashier's window, or into the private office of the president, or through that on into the main room where the employés worked, and had Mr. Price, the cashier, to write me out a check on my account for $100, and I signed it, and Mr. Price gave me the $100, and I went on out, and the defendant was standing about where I had left him, and I gave him this $100, and he put it in his pocket, and...