Livingston v. State

• Decision Date: 12 May 1948
• Docket Number: No. 24038.,24038.
• Citation: 214 S.W.2d 119
• Parties: LIVINGSTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 119

214 S.W.2d 119

LIVINGSTON v. STATE.

No. 24038.

Court of Criminal Appeals of Texas.

May 12, 1948.

Rehearing Granted October 13, 1948.

Commissioners' Decision.

Appeal from District Court, Shelby County; S. H. Sanders, Judge.

H. M. Livingston was convicted of robbery, and he appeals.

Reversed and remanded.

E. B. Lewis, of Center, for appellant.

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 indictment contained two counts the first of which charged that the accused committed the offense by the use of firearms, a pistol. In the second count, it was charged that he committed the offense by an assault and by violence and by putting the said Joe Gardner in fear of life and bodily injury. The court submitted the case to the jury on the first count.

The statement of facts shows that appellant, Lewis Davis, and Joe Gardner, the injured party, engaged in a crap game. The injured party testified that he was lucky and won while appellant lost all of his money; that appellant accused him and Lewis Davis of using crooked dice on him; that appellant cursed him, struck him with a pistol and took all of the money he had at the time he engaged in the game as well as the money he had won in the game and then departed leaving the injured party lying unconscious in the woods; that about dark he regained consciousness, went into town and reported the matter to the sheriff. E. B. Sanford, Jr., a boy who was present but who did not participate in the game, testified that after appellant had lost, he, at the instance and request of appellant, left the game a short time, went to appellant's place of business and got a box which contained a pistol and brought it to appellant. He further testified that appellant accused Lewis Davis and the injured party of trying to crook him, but that they could not do it. Davis denied this accusation, and then appellant arose, took his gun and hit the Negro (meaning Gardner) and told him, Gardner, to give him his money back. At this juncture, the witness walked away and as he was walking away he heard him hit the Negro and heard him say, "I will kill you, you s____ of a b____ if you don't give me my money." to which the Negro replied, "I will give it to you." After he, the witness, appellant and Davis got back to town, appellant gave Davis $7.50.

Appellant took the witness stand and testified in his own behalf. He admitted that he engaged in a dice game with the Negro, Joe Gardner, and Lewis Davis; that he lost in the game but denied that he assaulted and robbed Gardner. He claims that Gardner and Davis used crooked dice on him and when he discovered it he only took the money which he had lost in the game. He admitted, however, that when he arrived at home he had more money than he took to the game.

Appellant claims that the court erred in overruling his motion to quash the indictment because the same did not sufficiently describe the property alleged to have been taken. It was charged in indictment that appellant took $61 in lawful money, the same being the corporeal property of Joe Gardner, etc. This was a sufficient description of the property taken. See William Lee Bledsoe v. State, Tex.Cr.App., 210 S.W.2d 165 where the question under consideration is fully discussed.

Appellant next complains of the action of the trial court in overruling his second application for a continuance based on the absence of one Jack Willis. The bill bringing this matter forward is qualified by the trial court who in his qualification states that it was appellant's second application for a continuance; that the claimed testimony of said witness was cumulative. Appellant accepted the bill as qualified and is bound thereby. The bill as thus qualified fails to reflect any error.

By Bills of Exception Nos. 4 and 5 he complains of the action of the trial court in declining to sustain his motion made at the close of the State's evidence to instruct the jury to return a verdict of not guilty and again at the close of all the testimony he requested a peremptory instruction to the same effect. We see no error in the court's ruling since there was sufficient evidence as a predicate upon which the jury could base a verdict of guilty.

The State's Attorney has requested this court to strike out and not consider Bills of Exception Nos. 6, 7, 8, and 9 because they are in question and answer form and not in conformity with art. 667, C.C.P. This court has many times held that bills of exception in question and answer form will not be considered unless the court certifies that it is necessary that they be in such form. See Austin v. State, 148 Tex.Cr.R. 339, 187 S.W.2d 222; Green v. State, 144 Tex.Cr.R. 40, 160 S.W.2d 940; De Leon v. State, Tex.Cr.App., 201 S.W.2d 816; and many other cases might be cited.

By Bill of Exception No. 10 he complains because he was not permitted to prove by one A. W. Ballard certain statements allegedly made to said witness by Lewis Davis, one of the participants in the game. This bill is qualified by the court and in his qualification states that Lewis Davis was summoned by both the defendant and the state; that he was in attendance at court but was not called by either party as a witness; that the conversation sought to be proved occurred some two hours after the alleged robbery. Appellant accepted the bill as qualified by the court. The bill as qualified fails to reflect any error. Whatever Davis may have told Ballard two hours after the alleged robbery was hearsay and subject to the state's objection.

The trial court refused to permit appellant, in his examination of the prospective jurors, to propound to each the following question: "Do you consider it as much law enforcement for the jury to acquit one thought to be innocent as to convict one believed to be guilty?"

Appellant insists that he was entitled to propound said question to enable him to intelligently exercise his peremptory challenges. The question propounded did not relate to any matter which would constitute a disqualification of the prospective juror, or a challenge for cause. It is the well established rule of law that an accused may by proper interrogation and within reasonable limits elicit facts enabling him to intelligently exercise his peremptory challenges. See Belcher v. State, 96 Tex. Cr.R. 561, 258 S.W. 815; and Welk v. State, 96 Tex.Cr.R. 653, 260 S.W. 1118. The action of the trial court, however, as to such matters, is reviewable only to a determination of whether or not the trial court abused the discretion lodged in him. The bill of exception presenting this matter contains no certificate whereby it might be said that appellant was injured in this matter. In the light of the record as a whole, we are unable to reach the conclusion that an abuse of the trial court's discretion is shown.

Appellant also complains of the court's action in declining to heed and respect his objections to the charge. His first objection is addressed to paragraph seven of the court's charge because the court failed to charge that if the jury believed Joe Gardner and Lewis Davis, either acting together or alone, or either of them, obtained defendant's money in a dice game by the use of...