Parrish v. State

• Citation: 116 S.W.2d 706
• Decision Date: 16 March 1938
• Docket Number: No. 19454.,19454.
• Parties: PARRISH v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

116 S.W.2d 706

PARRISH v. STATE.

No. 19454.

Court of Criminal Appeals of Texas.

March 16, 1938.

Rehearing Denied May 18, 1938.

Appeal from District Court, San Augustine County; F. P. Adams, Judge.

Henry Parrish was convicted of being an accomplice to robbery by assault, and he appeals.

Affirmed.

See, also, 126 Tex.Cr.R. 308, 71 S.W.2d 274.

John F. McLaurin, of San Augustine, and Minton & Minton, of Hemphill, for appellant.

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

GRAVES, Judge.

Appellant was convicted of being an accomplice to robbery by assault, and his punishment fixed at five years in the penitentiary.

He first complains of the trial court's action herein in changing the venue hereof of its own motion from Sabine county to San Augustine county. It seems that this cause is supposed to have arisen in 1933, and that same had been tried in Sabine county twice on the same state of facts, each trial having resulted in a hung jury, and that the case of the principal, Paul Conley, had also been tried in Sabine county. The learned trial judge also certified that the person thus robbed was a highly respected and aged citizen of such county; that many people had attended such trials, and wide publicity had been given to the facts relative thereto, and, in his opinion, a trial fair alike to both sides could not be had in Sabine county. It seems to us that there was no abuse of judicial discretion shown in said action. Appellant cites the case of Norwood v. State, 116 Tex. Cr.R. 283, 34 S.W.2d 590, in support of his bill of exceptions taken to the court's action in changing such venue. We fail to see how appellant can derive any comfort from the Norwood Case. We quote therefrom: "The judgment is attacked upon the ground that the judge of the district court of Wichita county abused his discretion in changing the venue. When the order changing the venue was made, the appellant excepted to it, but embraced in the record no facts upon which he founded his complaint. When the case was called in Archer county, the appellant objected to the jurisdiction of that court, but set up no facts further than a recital in his exception that the order of transfer was void because it stated no reason for making the transfer."

We also quote from Henderson v. State, 104 Tex.Cr.R. 495, 283 S.W. 497, 503, in which is stated: "We understand the law to be that the revision of such an order upon appeal can only be made in a case in which it is shown that the rights of the accused have been materially prejudiced by the action of the court in changing the venue," citing many cases.

We also call attention to article 560, C. C.P., which reads as follows: "Whenever in any case of felony the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, can not, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue."

In our opinion the judge's action in so changing the venue was not arbitrary nor an abuse of his discretion, and the reasons given in such order justified his action therein.

Appellant's fourth bill of exceptions complains of the trial court's refusal to limit the testimony of the admitted principal Paul Conley in the robbery to the one fact of the commission of the robbery. Such witness was present in person and testified fully not only to the robbery, but also as to the connection of appellant therewith prior to the robbery. Unquestionably the witness was an accomplice, and was treated as such in the court's charge, and his testimony relative to appellant's connection with such offense, though necessarily to be corroborated, was surely admissible to show, if it could show, appellant's guilty connection with the alleged offense.

To practically the same effect is the eighth and eleventh assignment of error in appellant's brief, which relate to the failure of the court to limit the testimony of M. S. Parrish, the injured party, to the fact alone of a robbery being committed by Paul Conley and another whose name seems to be unknown. We can see no reason for such instruction. In the first place, no testimony of any kind was given by such witness that could be used to connect appellant with the actual robbery, but only testimony that showed Paul Conley and his unknown associate to be there present and acting therein. True, he does testify that some time prior to the robbery appellant came to witness' home and tried to borrow some money, which testimony we think admissible for whatever it might be worth as corroborative of certain statements testified to by Conley as having been made to Conley by appellant. We do not think that the trial court was called upon to limit the testimony of the witness in any particular, especially since a portion thereof might tend to corroborate the said Conley. However, we can see no serious error, if error there was, in the admission of such testimony, as the witness only mentioned the appellant's name once, and that seems to us to have been a matter of original testimony, which at least tended to show appellant's belief that the injured party possessed some sum of money at his home. Appellant cites many cases in support of these above assignments, the major portion thereof being relative to an extra-judicial confession of the principal, and, of course, are mere hearsay as against the person on trial, but are admitted because of the exigencies of the situation. Such a case is Espalin v. State, 90 Tex.Cr.R. 625, 237 S.W. 274, and...