Pitts v. State

• Decision Date: 19 October 1910
• Parties: PITTS v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 801

PITTS v. STATE.

Court of Criminal Appeals of Texas.

October 19, 1910.

On Motion for Rehearing, December 21, 1910.

Appeal from District Court, Jefferson County; W. H. Pope, Judge.

Eugene Pitts was convicted of burglary, and appeals. Affirmed.

B. E. Moore, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appellant, Eugene Pitts, and one Miles Grogan, were charged by indictment filed in the district court of Jefferson county on the 9th day of March of this year with the offense of burglary. They were brought to trial upon the 10th day of March thereafter, which resulted in a conviction of both of them, the punishment of appellant Pitts being assessed at confinement in the penitentiary for a period of five years, and the punishment of Grogan being assessed (the jury having found him to be under 16 years of age) at confinement in the reformatory for a period of two years.

Grogan did not appeal his case, and the sole question before us is whether the conviction of Pitts, who prosecutes the appeal, should be reversed. Grogan testifies in considerable detail to a state of facts which makes both himself and Pitts guilty of burglary. There is in the record, we think, sufficient evidence of corroboration.

1. Complaint is made that the court erred in permitting the witness Grogan to testify that, when arrested and when he testified before the grand jury, he made substantially the same statement touching the matter in controversy as he made on the trial of the case here as a witness. The same objection was made to the testimony of Wilson who testified as to statements made by Grogan to him. These bills are approved with the following qualification: "This occurred after the defendant's counsel had attempted to impeach and contradict the witness Miles Grogan." The explanation of the court is quite general, and the facts and circumstances of impeachment and the extent and nature of same are not given. The statement is sufficient, however, to warrant the conclusion that there had been such impeachment of the witness as would justify the admission of this supporting testimony. This rule is well established in this state. Harvill v. State, 54 Tex. Cr. R. 426, 113 S. W. 283. In the very recent case of Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054, it is said: "Where upon trial for murder the state witness' testimony was attacked by the defense testimony to show that he had made a statement contradictory to that made on the trial, it was not error to permit the state to show that said witness had made the same statement before the trial."

2. The charge of the court on the subject of accomplice is complained of. The complaint of the charge touching this matter is in this language: "The court erred in its charge as to accomplice testimony. It is only in the abstract, and does not fully present the law as was raised from the testimony, and does not define the meaning of an accomplice as the evidence raised." The charge complained of is in this language: "I instruct you that the witness Miles Grogan is an accomplice. Now you cannot convict the defendant, Eugene Pitts, upon his testimony alone unless you first believe that his testimony is true and connects the defendant, Eugene Pitts, with the offense charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplice's testimony tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged." This charge is not subject to the objection that it does not define an accomplice, since the jury are instructed as a matter of law that the witness Miles Grogan was an accomplice. Neither can it be said in fairness that the charge of the court is merely an abstract instruction. In what respects it is supposed or believed that the instruction does not fully present the law the motion does not advise us. While not framed in precise accordance with the precedents approved by this court (Campbell v. State, 57 Tex. Cr. R. 301, 123 S. W. 583), we think that it is not subject to the objection here made.

3. Objection was made that after the witnesses Dan Richard, Mrs. Richard, and Dan Wilson had testified on their direct examination that the larger of the tracks found near the premises entered on the day of the burglary corresponded with and fit the track of appellant, and that he had placed his foot by one track and also had placed his foot in another track, it developed on cross-examination of all these witnesses that at the time these tracks were made by appellant which formed the basis of comparison that he was under arrest and subject to the control of Wilson, the deputy sheriff, who made him place his foot by the track and also made him put his foot in the track. Thereupon it was moved by appellant to have the testimony stricken out, for that it conclusively appeared that in placing his foot by and in the track he was under arrest and was made to do so; that he did not voluntarily do so, and the same was not his free and voluntary act or deed, which motion the court overruled. Practically the identical question here raised was decided against appellant in the well-considered case of Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595. In that case, which was a capital felony, the prosecution proved that footprints were found on the premises where the assassination had been perpetrated, and was further allowed, over objection by the defense, to prove that the examining magistrate compelled the defendant Walker to make his footprints in an ash heap, and that the footprints so made corresponded with...