Heald v. State, 17943.

• Decision Date: 19 February 1936
• Docket Number: No. 17943.,17943.
• Citation: 92 S.W.2d 1042
• Parties: HEALD v. STATE.
• Court: Texas Court of Criminal Appeals

92 S.W.2d 1042

HEALD v. STATE.

No. 17943.

Court of Criminal Appeals of Texas.

February 19, 1936.

Rehearing Denied April 8, 1936.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Oran Heald was convicted of robbery, and he appeals.

Affirmed.

Fred A. Hartley and Orville M. Jobe, both of Waco, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of robbery, and his punishment was assessed at confinement in the state penitentiary for a term of 5 years.

The record shows that on the 17th day of April, 1934, and for some time prior thereto, Frank Farek owned and operated a restaurant and filling station at a point where the highway leading from Corsicana to Waco and the one leading from Mexia to Waco intersect; that on the night of said day of April, the appellant and Hubert Hulen robbed the said Frank Farek of $15 in money, a pistol, cigarettes, a slot machine, and pies. At the trial appellant was positively identified by Farek and two of his employees as the person who held a pistol on them, commanded them to lie on the floor, and then ordered Kabitza, one of the employees, to open the door to the safe in said place of business. Kabitza obeyed the order, and Hulen, appellant's companion in crime, took from the safe $15. After taking such property as they desired, they entered an automobile belonging to Kabitza and drove away, but abandoned the car some four miles from the place where the robbery occurred. The testimony adduced by the state further shows that appellant and Hulen were at the home of Tom Tyler, an uncle of appellant, during the day preceding the robbery on said night; that they left Tyler's home a short time before sundown stating that they were going to Mexia, which was in the direction of Frank Farek's place of business. Appellant's plea was that of an alibi, which he supported by the testimony of a number of witnesses. The issue thus raised was submitted to the jury under an appropriate instruction from the court, and they decided it adversely to appellant.

By bills of exception from 1 to 8, both inclusive, appellant complains of the arguments made by the district attorney and his assistant. Some of the bills are qualified by the trial court, and, as thus qualified, fail to show error, while the others, which are not qualified, when considered in the light of the entire record also fail to show reversible error.

Bill of exception No. 9 reflects the following occurrence: While the jury was deliberating on their verdict, the question arose as to whether or not the suspended sentence law (Vernon's Ann.C.C.P. art. 776) applied to a case of the nature under consideration. No one seemed to know. It was finally agreed that the following written interrogatory be propounded to the court, "Can this case carry a suspended sentence? S. P. Marley, Foreman," which was handed to the sheriff with the request that he deliver it to the court, which he did. The court made the following reply: "Gentlemen of the jury: In answer to your question, which is as follows, "Can this case carry a suspended sentence?" My answer is `No.' D. W. Bartlett, Judge." Appellant and his attorney who were present in the courtroom at the time objected to the court's reply being delivered to the jury, and contends that the trial court's action constitutes reversible error, and in support of his contention cites us to the case of Vaughn v. State, 102 Tex.Cr.R. 207, 277 S.W. 646. It is apparent from the record that the entire communication between the jury and court related to the suspended sentence law, which was foreign to any issue in the case. The court's reply was not an instruction to the jury on the law of the case or any phase thereof, had no relation thereto, and could not have injuriously affected the appellant's rights any more than if they had asked the court whether they might, during the time that they were considering the case, engage in a game of chess, checkers, or dominoes. We are not unmindful of articles 677 and 679, C.C.P., which relate to procedure when additional instructions are requested by the jury, or when they request the reproduction of certain testimony; and in such instances said articles should be observed. The fact that the court did not have the jury brought into open court and in the presence of appellant propound their question, and then make his reply, could not have injured appellant unless the court gave additional instructions with reference to a matter that had been submitted to them or should have been submitted to them as a part of the law of the case, or either denied or prevented appellant from making his written objections thereto as prescribed by law.

We think this case is distinguishable from the case of Vaughn v. State, supra, in this: That in said case the accused was charged with forgery. At his trial, he filed a plea for a suspension of sentence, which was submitted to the jury for their determination, and which the jury had a right to recommend in case they concluded that the facts and circumstances in evidence justified such action on their part. During a discussion of this issue, the question arose as to what was meant by the term "good behavior," as contained in the court's charge. Some of the jurors contended that if appellant's sentence was suspended he could not be rearrested upon the present charge unless he subsequently committed a felony,...