Jones v. State
| Decision Date | 10 January 1912 |
| Parties | JONES et al. v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
Harrison Jones and another were convicted of robbery, and they appeal. Affirmed.
C. C. Highsmith and C. E. & A. E. Heidingsfelder, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.
Appellants were jointly indicted by the grand jury of Harris county, charging them with the offense of robbery by assault. They were jointly tried and both convicted, and jointly present this appeal.
We cannot consider that clause in the motion complaining of the improper conduct of the jury, in that defendants believe that the jury discussed and commented on the fact that defendant Roy Jones did not testify in the case. There was no evidence offered in support of such allegation, and a statement in a motion for a new trial that a defendant believes a state of facts to exist does not present it in such way that we can review it, unless there is some evidence offered in support of such allegation.
There are no bills of exceptions in the record. Therefore we have no evidence that the district attorney used the language in his argument stated in the motion for a new trial, nor, if he did use it, that there was any exception taken at the time. Consequently, as the record is presented to us (no evidence that the language was used), there was no error in not giving the special charges requested in regard thereto.
Neither can we consider the ground in the motion complaining that the court permitted the stenographer to testify to what Roy Jones had testified in a former trial of this case. It is true that Roy Jones did not testify at this trial, but, if he had testified in a former trial of this case, his testimony at the former trial was admissible in evidence on this trial under the decisions of this court. Smith v. State, 75 S. W. 298; Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127, 881; Collins v. State, 39 Tex. Cr. R. 441, 46 S. W. 933. No exception being reserved to the admissibility of this testimony, it is not presented in a way that we could act thereon, but, if it were so presented, under the above decisions, it was not error to admit it. And, being thus admitted without objection, there was no error in the court instructing the jury: "I instruct you not to consider the testimony of Roy Jones given on a former trial of this case and read by the stenographer from his notes taken on the former trial for any purpose as to the defendant Harrison...
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