Henderson v. State

• Decision Date: 02 January 1946
• Docket Number: No. 23261.,23261.
• Citation: 192 S.W.2d 446
• Parties: HENDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

192 S.W.2d 446

HENDERSON v. STATE.

No. 23261.

Court of Criminal Appeals of Texas.

January 2, 1946.

Rehearing Denied February 20, 1946.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.

John D. Henderson was convicted of robbery, and he appeals.

Affirmed.

Kahn, Heidingsfelder & Wander, of Houston, for appellant.

A. C. Winborn, Criminal Dist. Atty., and E. T. Branch, Asst. Criminal Dist. Atty., both of Houston, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is robbery. The punishment assessed is confinement in the state penitentiary for a term of five years.

The record discloses that on the night of March 25, 1945, appellant, who was accompanied in his automobile by one, R. E. Brown, and two ladies, collided with that of James M. Condon who, at the time, was riding in his car in company with two ladies. Immediately after the collision, Condon stopped his car and got out of it to investigate the damage to it, while appellant drove on some distance, then turned around, came back to where Condon was and demanded that he pay him $15 or he would "beat hell" out of him. Condon declined to pay him, whereupon appellant struck him, knocked him down and kicked him. When Condon was finally permitted to arise, he told appellant that he did not have $15, and in order to convince appellant of the truthfulness of his statement, he pulled his billfold out of his pocket and opened it. Appellant grabbed it and took therefrom five one-dollar bills. He then tore the billfold in two and handed it back to Condon.

Appellant did not testify. However, he proved by the two ladies who were with him at the time and place of the occasion in question, that Condon voluntarily gave him the money after they had engaged in a fist fight.

It will be noted from the foregoing brief statement of the facts that whether Condon voluntarily gave the money to appellant, or did so to avoid further punishment at the hands of appellant, was an issue which the jury decided adversely to him.

Appellant and R. E. Brown were both indicted for the offense. Brown filed a motion for a severance on the 7th day of April, praying that the same be granted and that appellant be tried first. The defendants were unable to agree as to who should be tried first. Thereupon the court placed defendant on trial, to which he objected, which objection was overruled and he then and there excepted. We see no error reflected by the bill. The court's action relating to this matter is in accord with Art. 652, C.C.P., which provides as follows: "If a severance is granted, the defendants may agree upon the order in which they are to be tried, but if they fail to agree, the court shall direct the order of the trial." See Morgan v. State, 97 Tex.Cr.R. 383, 261 S.W. 1034; Goforth v. State, 100 Tex.Cr.R. 442, 273 S.W. 845; Murrell v. State, 137 Tex.Cr.R. 92, 127 S.W.2d 896; Fletcher v. State, 141 Tex.Cr. R. 26, 147 S.W.2d 233; Alford v. State, 143 Tex.Cr.R. 57, 157 S.W.2d 391.

The court, in his main charge to the jury, instructed them as to the law applicable to the case, and included therein the following instruction: "The fact that the defendant claimed that said Condon was to blame in damaging his car would not give the defendant the right to extort money in payment thereof by assault or by putting said Condon in fear of life or bodily injury."

Appellant objected thereto on the ground that it was not the law applicable to the case; that it was an undue comment on the weight of the evidence; that it calls the jury's attention to the fact that the defendant attempted to and did extort money for damages by putting Condon in fear of life or bodily injury. The court overruled the objection with the explanation that appellant's attorney claimed that he had a right to assess the damages to his car and to collect the money by force, and that the court deemed it proper to advise the jury of what the law was on the subject, to which ruling appellant excepted. The trial court no doubt followed the instruction in the case of Fanin v. State, 51 Tex. Cr.R. 41, 100 S.W. 916, 10 L.R.A.,N.S., 744, 123 Am.St.Rep. 874, which is almost in identical language as the one here complained of. The objection in that case, as in the present instance, was that it did not state the law; that the contrary is the law. The trial court evidently deemed it necessary to advise the jury what the law was under the particular facts of this case. Whether or not the injured party ran his automobile into that of the appellant and injured it is not of any moment, since appellant was not legally justified in collecting unliquidated damages by assault or violence or by putting Condon in fear of life or bodily injury. To hold otherwise would be establishing a dangerous doctrine, since it would authorize the accused not only to decide his own injury or damage but to enforce the collection thereof by force and violence. This is contrary to the policy of our form of government. We do not think that the charge in question is any comment on the evidence but is the pronouncement of the law pertaining to the particular facts of this case.

From what we have said it follows that the judgment of the trial court should be affirmed, and it is so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. On Motion for Rehearing.

BEAUCHAMP, Judge.

In his motion for rehearing appellant raises, for the first time, a question about the order of the court granting a severance on the application of his codefendant, Brown. They were charged by joint indictment. Brown filed a motion for severance on the 7th day of the month. On the 19th day of the month, thereafter, appellant filed his motion asking for a severance and also asking that Brown be first placed on trial. Appellant seriously contends that the motion for severance filed by Brown was not in accord with the requirements of the statute. He then insists that his motion for severance was good and that he thereby procured a priority on the right to have his codefendant placed on trial first. We do not so construe the statute. It appears that Brown's motion for...