Perry v. State

• Decision Date: 26 March 1913
• Citation: 155 S.W. 263
• Parties: PERRY v. STATE.
• Court: Texas Court of Criminal Appeals

155 S.W. 263

PERRY v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1913.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Ruby Perry was convicted of robbery, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years' confinement in the penitentiary.

The state has moved to strike the bills of exception from the record because not filed within the time permitted by law. The motion is well taken; but, should we consider same, they are brought to us in a way that appellant himself complains that they do not properly present the questions. Appellant filed a motion in the trial court, asking that the original statement of facts, in question and answer form, and as made out by the stenographer, be sent up, which request was by the court refused. He alleges that he did this in order that we might turn to this record, and decide whether he or the trial judge is right in certain contentions.

Our decisions aptly point out appellant's remedy, if the court improperly qualifies a bill of exceptions in approving it. Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368. If appellant does not except to the action of the court in doing so, but accepts the bill as thus qualified, it is too late to complain in this court of the qualification. These matters must be contested in the trial court, and the record presented in a way that it in and of itself presents the erroneous ruling complained of. This cannot be shown by ex parte statements in this court. We must accept the verified record sent to us, and act on the questions as thus presented.

In the first bill it is stated that the appellant objected to Oney Bompart being permitted to testify on the ground that he had been convicted and sentenced to the penitentiary. In approving this bill the court states: "This bill of exceptions is incorrect in almost every particular. The facts are that defendant's attorney wanted to stop the examination in chief of the witness Oney Bompart, and prove by the witness orally that he had been convicted of robbery in connection with this case. The court ruled that this could not be done by oral proof, but the record proof must be offered. The defendant's counsel then asked that the clerk be required to produce the record of the conviction. The court informed counsel that the cause was not tried in this court, but was transferred to the juvenile court. He took no exception to the language of the court, for the court was telling counsel as a matter of information where he could find record. It is untrue that defendant ever produced the record, or a certified copy of it, or that the court refused to allow time to prove the conviction by the record. The court did rule against him on his contention that he could prove the conviction orally by the witness for the purpose of disqualifying the witness. The court did allow defendant's attorney on cross-examination of the witness for purposes of impeachment to prove by him that the witness had been convicted, and afterward pardoned by the Governor. The only exception he took was to the court's ruling that the witness could not be disqualified by oral proof of his conviction. To this extent only is the bill approved."

If, as now contended by appellant, he offered in evidence the judgment and record, and the court refused to permit him to introduce same, he should have copied in the bill presented the judgment and sentence which he offered in the bill of exceptions. This was not done, and the record before us does not contain the judgment nor sentence. If the court would not allow him time to get it at that time, he certainly had time during the trial to obtain it, and when he had done so he could have presented a written motion to strike out the testimony of this witness, attaching to it a copy of the judgment and sentence, and thus placed it in the record.

In the absence of any such showing, we must conclude that the court is correct in his qualification, and it has been the unbroken rule of decision in this court that where one proves orally by a witness that he has been convicted of a felony, and the court admits it solely on the question of credibility of the witness, and the witness also states orally at the time he has been pardoned, it is not error to permit the witness to testify. McNeal v. State, 43 S. W. 792; Bratton v. State, 34 Tex. Cr. R. 447, 31 S. W. 379.

Those bills that complain that whereas the indictment alleged that "the offense was committed on or about the 3d day of December, that the court erred in permitting the witnesses to testify that the offense occurred on December 23d," present no error. The state could prove any date within the period of limitation. Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160.

The state's witness testified that on the night of the alleged robbery appellant asked Dodd to come and go with them, when "Dodd replied he would like to do so, but he had a case against him in county court." Appellant complains that this testimony was admitted. The state's witness was detailing a conversation had with appellant in regard to committing this robbery, and this was a part of the same conversation, and was admissible.

The witness King was permitted to testify that Oney Bompart (state's witness) worked for him, and that appellant was with the witness at the time and place stated by him, and he...