Pruett v. State

• Decision Date: 18 December 1929
• Docket Number: (No. 12825.)
• Citation: 24 S.W.2d 41
• Parties: PRUETT v. STATE.
• Court: Texas Court of Criminal Appeals

24 S.W.2d 41

PRUETT v. STATE.

(No. 12825.)

Court of Criminal Appeals of Texas.

December 18, 1929.

Rehearing Denied January 29, 1930.

Commissioner's Decision.

Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.

William Pruett, Jr., was convicted of robbery with firearms, and he appeals. Affirmed.

Chaney & Parmeter and Baskett & DeLee, all of Dallas, for appellant.

William McCraw, Cr. Dist. Atty., and Andrew J. Priest, Asst. Dist. Atty., both of Dallas, and A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for 99 years.

Appellant entered a drug store in the city of Dallas, exhibited a pistol, and robbed the cash register and several persons present. He took one of the parties away with him, admonishing those present that, if they reported the affair before he got away, he would kill his captive. He later released his prisoner. The foregoing is a brief statement of the testimony on the part of the state. Appellant was positively identified by several of the state's witnesses. Moreover, the coat and other articles found in his possession at the time of his arrest were identified. Testifying for appellant, several witnesses placed appellant at another and different place at the time the offense was committed.

Bill of exceptions No. 1 presents the following occurrence: Indorsed on the back of the indictment were the names of eight witnesses. Before the case was called for trial, appellant filed his motion in writing asking the court to require the state to indorse upon the indictment the names of any additional witnesses the prosecution expected to use upon the trial, or to furnish counsel for appellant with a list of said witnesses. Responding to the motion, counsel for the state furnished appellant's counsel with a list of certain additional witnesses the state proposed to use. This list did not contain the names of certain witnesses thereafter used by the state. However, after the trial had begun, counsel for the state furnished appellant's counsel a further list. The state used one witness whose name did not appear upon any of the lists furnished appellant's counsel. Appellant objected to the use by the state of the witnesses whose names were not furnished until after the trial began, and of the witness whose name was not furnished at any stage of the proceedings. The court overruled the objection and permitted the witnesses to testify. The bill of exceptions is qualified with the statement that the state did not know that the witnesses would be used until they were called to the witness stand.

Appellant relies upon the provisions of article 392, Code Cr. Proc. which reads as follows:

"The attorney representing the state shall prepare all indictments which have been found, with as little delay as possible, and deliver them to the foreman, who shall sign the same officially, and said attorney shall indorse thereon the names of the witnesses upon whose testimony the same was found."

In the case of Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157, this court held the provision of the statute in question to be merely directory, and said that a failure to comply with its provisions was not a ground for excluding the evidence of a state's witness whose name had not been indorsed upon the indictment. See also Williams v. State, 37 Tex. Cr. R. 747, 38 S. W. 999. In Jacobs v. State, 35 Tex. Cr. R. 410, 34 S. W. 110, Judge Henderson used language as follows:

"As to the indorsement on the bill of indictment of the names of the witnesses, if this was not done, it was competent for the defendant to make a motion to require the prosecuting attorney to indorse them. This was not done, nor is it shown that the indictment did not contain the names of the witnesses indorsed on the back thereof."

The statute goes no further than to provide that the names of the witnesses upon whose testimony the indictment was found be indorsed on said indictment. There is nothing in the bill of exceptions to show that the eight witnesses whose names were indorsed on the indictment were not the only witnesses upon whose testimony the indictment was found. With the exception of one witness, the names of the additional witnesses were furnished appellant's counsel, and, according to the certificate of the trial judge, it was not known that these witnesses would be used until shortly before they were called to the witness stand. There is nothing in the bill of exceptions to show that appellant was surprised at the testimony of said witnesses. He made no application for a postponement or a continuance on the ground of surprise. We quote from Shaddix v. State, 90 Tex. Cr. R. 431, 235 S. W. 602, 603, as follows:

"Appellant also again urges that the state should not have been permitted to use certain witnesses in rebuttal whose names did not appear upon the indictment, and claims that such testimony was very hurtful to his cause, and was a great surprise to his counsel. Our procedure permits one on trial to make application for continuance or postponement in the event unforeseen testimony is offered against him, and in case he brings himself within the very reasonable rules laid down in regard to such matters, and his request is refused, this court has reversed; but in the instant case there was no such request, and no effort made to postpone or continue, and if appellant's counsel was surprised to any great extent at the testimony of said witnesses, same is not made known to us in any legal manner. The mere introduction of witnesses whose names or presence are unknown to appellant of itself constitutes no ground for the reversal of cases by this court."

We are of the opinion that the bill of exception, as qualified by the court, fails to reflect error.

It is shown by bill of exceptions No. 2 that an officer testified, over appellant's objection, that appellant resisted arrest. The objections were that the arrest was made without a warrant and was unlawful; that there was no testimony that the officers had made known to appellant that they intended to arrest him, or for what offense they were arresting him; that appellant did not know for what offense he was being arrested, and did not know that the parties making the arrest were officers; that the officers did not make known to appellant that they were officers. The court qualified the bill of exceptions as follows: "It was not the defendant's home or residence. The owner of the house invited the officers in. The defendant had committed a felony and was trying to escape, of which the officers had been advised (as testified to by the officers on motion for new trial), and the defendant well knew for what he was being arrested."

Appellant relies upon some expressions found in the case of Chester v. State, 108 Tex. Cr. R. 150, 300 S. W. 57, 59. In that case the state proved that the accused, at the time of his arrest, told the officers to keep their "G____ d____ hands" off him. Discussing the question, this court said:

"It is admissible to prove that an accused resisted arrest by proof of contemporaneous admissions or conduct, but for same to be admissible as an incriminating fact it should be affirmatively shown that the accused knew or should have known that an attempt was being made to arrest him. We think the testimony was admissible as against the objection that he was at the time under arrest, but it may have been inadmissible for the reason before indicated."

Here the court's qualification affirmatively shows that appellant well knew for what he was being arrested. Moreover, we think it is clear that the arrest without warrant was legal. Article 215, Code Cr. Proc. provides:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."

In Rutherford v. State, 104 Tex. Cr. R. 127. 283 S. W. 512, 515, it was held that, where it is shown to the officer in the manner prescribed in the statute that an offense has been committed by the person designated, it is the duty of the officer to get a warrant, unless he...