High v. State, 25992

• Decision Date: 05 November 1952
• Docket Number: No. 25992,25992
• Parties: HIGH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 874

253 S.W.2d 874

158 Tex.Crim. 148

HIGH v. STATE.

No. 25992.

Court of Criminal Appeals of Texas.

Nov. 5, 1952.

Rehearing Denied Dec. 17, 1952.

Second Motion for Rehearing Denied Jan. 14, 1953.

Oscar B. Jones, Mike Anglin, Longview, for appellant.

George P. Blackburn, State's Atty., Austin, for the State.

BEAUCHAMP, Judge.

The conviction is for robbery by assault, with a sentence of twenty years in the penitentiary.

The offense for which appellant was convicted was committed in the town of Jefferson, Marion County. After twice continuing the case, it met an unsuccessful attempt to secure a jury. The case was then transferred by the court, on his own motion, to Harrison County. When it was called for trial both parties announced ready.

Appellant and his brother, Orby High, were separately indicted and charged with taking a pistol from a constable who was attempting to arrest them. The evidence shows that Constable Cromer and Deputy Sheriff Freeze attempted to arrest the brothers in front of appellant's cafe. While there is conflict in the testimony as to what occurred, it is clear that the brothers resisted arrest and succeeded in taking the constable's pistol away from him, after which they made their escape. In resisting arrest and securing the pistol, the appellant pulled his own gun and while holding both of them on the officers backed off some distance, until they could turn and run, which they did. They eluded the officers and were next heard of in Fort Worth, where, it is admitted, appellant pawned the officer's pistol.

The state waived the charge of robbery with a prohibited weapon and he was convicted under the count charging robbery by assault.

We find seven bills of exception in the record. Bills of Exception Nos. 1, 6 and 7 complain of the argument of the County Attorney in opening the case. The second bill complains of the argument of the District Attorney of Marion County, while making the closing argument in the case. Others complain of the court's charge.

Bills 1 and 7 are in every material aspect identical. The argument complained of reviews the history of the case and commends the officers, and our system of trial, because of the long delay accorded appellant before he was answering in court. Appellant objected to some of this argument on the ground that it was out of the record. The court sustained that and instructed the jury to '* * * not consider anything that was said with reference to what the record shows about the indictment.' The bills then recite many other things which took place and were incident to the offense and the trial of the case. They set out, at great length, the contentions of appellant that this argument was inflammatory and was not in the record; that it was of such prejudicial and inflammatory nature that it could not be with-drawn from the jury; and that the court's instruction to the jury did not sufficiently cover the matter.

We see no harm in this argument. So far as the bills disclose it appeared to be a preliminary statement, for some purpose not revealed. It was perfectly apparent to the jury from the record that the case nature that it could not be withdrawn to Harrison County. The instruction of the cautious trial court to the jury gave appellant that much more than he appears to have been entitled to receive.

Further quoting from these bills, it is recited that the County Attorney said, among other things: 'You are bound to know with what restraint those officers on that occasion acted, and as a result of it, you have this trial here today, and nobody has been hurt. * * * This thing occurred eight months and three days before this defendant was ever brought to final trial. * * * The record shows that the defendant has been granted bail; it shows that on two occasions this case was set for trial in the District Court of Marion County----.'

The court sustained appellant's objection to this argument. The prosecutor then said: '* * * it is before this jury that for some reason that case has been transferred from Marion County and it is now here for your disposition.' The objection to this was overruled and exception taken.

There is no error shown in the foregoing and if the much involved bills complain of anything else then they are multifarious and fatally defective.

Bill of Exception No. 6 is quite similar to Bills One and Seven. It differs slightly in verbiage. After reciting (Tr. p. 61) '* * * that from all the testimony it appears that the difficult was attended by much excitement and fear by all parties concerned and present,' complaint is then made of the following statement by Mr. Cavin, County Attorney: 'Gentlemen of the Jury, you are bound to realize that that transaction over in Jefferson on the night of the 14th of July was loaded, and the least little spark would have caused an explosion that you don't know what might have happened----.'

Appellant would have us to construe this argument to relate to the reasoning behind the transfer of the case to Harrison County. We are unable to tell from the bill what the County Attorney was intending to say. What he did say is perfectly logical and apparent to every one from the situation which the bill says was fully described by all of the evidence in the case. Again, the trial judge, out of an abundance of caution, sustained the objection and instructed the jury not to consider the same. Apparently this instruction satisfied the appellant for he recorded no exception as taken to that procedure.

Bill of Exception No. 2 complains of the closing argument...