Rowan v. State

• Citation: 260 S.W. 591
• Decision Date: 13 February 1924
• Docket Number: (No. 6533.)
• Parties: ROWAN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

260 S.W. 591

ROWAN v. STATE.

(No. 6533.)

Court of Criminal Appeals of Texas.

February 13, 1924.

Rehearing Denied March 26, 1924.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Albert Rowan was convicted of murder, and he appeals. Affirmed.

Jed C. Adams, W. W. Nelms, M. T. Lively, and W. B. Harrell, all of Dallas, J. F. Cunningham, of Abilene, and Robert B. Allen, of Dallas, for appellant.

W. J. Cunningham, Dist. Atty., of Abilene, and Maury Hughes, W. L. Curtis, and E. R. Howell, Asst. Dist. Attys., all of Dallas, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Taylor county of murder, and his punishment fixed at 50 years in the penitentiary.

On January 14, 1921, the Jackson street post office in Dallas was robbed by a group of men, and George Street, an employee in said post office, was shot and killed. Mr. Smith, another employee, was seriously wounded but recovered. A large quantity of money and certificates were taken, about $4,000 of the money being in one and two dollar bills. The robbery occurred about 6:50 p. m., and on the same night near Lake Worth in Tarrant county a large quantity of the property was recovered; the bags being split open with sharp instruments and some of the contents having been taken out. A man named Scrivenor was arrested the same night, and, as a result of information given by him, investigations were set on foot which led to the arrest of appellant. His indictment, trial, and conviction followed The matters presented on behalf of appellant will be discussed by us in the order in which they are presented in his brief.

Appellant by motions and requested instructions asked that the jury be told to acquit on the ground that the evidence failed to support the proposition of his guilt as a principal offender in the murder of Mr. Street, he being charged only in that capacity. Denial of all the above is ably and urgently presented here as error. The learned trial judge correctly charged the jury that if they believed beyond a reasonable doubt that appellant and other named persons made an agreement to arm themselves and rob the Jackson street post office in Dallas county, and intended if resistance was made to kill any clerk or employee of said post office, and that in pursuance of said common intent and agreement said other persons while so acting killed George Street, and that this appellant was not actually present at the time and place of the killing, but was doing some act carrying out his part of the common intent, design, etc., they should find him guilty of murder. The charge also submitted the theory of the actual presence of the appellant at the time of the killing and of his former agreement to commit said offense.

The record in this case as well as the statement of facts is lengthy, but has received careful scrutiny at our hands. Scrivenor, an admitted participant, details his meeting with appellant and the other named persons at the St. James Hotel in Dallas and their plans, and the various steps taken by them in carrying same out, to commit the robbery. According to said plans the proceeds of the robbery were to be taken to appellant's house in the city of Dallas, where he was to meet those actually committing the robbery and to divide. According to the state's contention, appellant was the brains of the transaction, had been about the post office and knew the movements of its employees and the shipments of money from the Federal Reserve Bank, and was the one who made the plans, and, being originally of Dallas county and well known, he was to hold himself aloof from the actual execution of the robbery, but was to be near by and was to aid and assist the escape of those actually doing the robbery by keeping close watch upon the transaction, and, if there was pursuit of their car as they fled from the scene of the robbery, he was to fall in behind them and as an apparently innocent bystander interfere with the pursuit by getting his car in the way of any pursuing car and if necessary strip the gears of his car in order to check pursuit. Each of the men engaged in the actual robbery was to have two guns. In discussing this feature of the plans in a room at the St. James Hotel which had been occupied by appellant for some time prior to the robbery and in which he was observed and seen in consultation with a number of men during the afternoon of the robbery, it was found that there were not enough guns to furnish each man two. Scrivenor said that at this juncture appellant got $50 from another member of the party named Luna and went over and redeemed two pistols which he had "in soak," and that he returned in a few minutes with an automatic and also an ivory-handled pistol; this last transaction occurring in the neighborhood of 4 o'clock. One Morris, not a participant in any way, testified that between 3:20 and 4:30 o'clock p. m. on the day of the robbery appellant came to his place and paid him $50 and redeemed two pistols which were pledged, one an automatic and the other a white-handled pistol. A Mexican maid at the St. James Hotel testified that appellant had for some time had a room at said hotel, and that on the afternoon of the robbery she saw him with a number of other "mens" in said room. Scrivenor testified in detail to the agreement, which was in substance that he with all of the others except appellant were to go to the post office, commit the robbery, secure the sacks of money or mail, and escape in a car to appellant's house; Scrivenor, being an expert driver, was to handle the automobile while the others were in the building executing the robbery. Appellant was to be at a nearby place where he could see and observe what was going on and have his car in readiness to aid them in getting away as above stated. The route from the post office to appellant's house had been gone over carefully that day and agreed upon and was followed by the robbing party after the assault, murder, and robbery was committed.

Scrivenor testified that the party remained at the St. James Hotel until some time after 6:30 p. m., and then separated, leaving one and two at a time and meeting at their cars; appellant proceeding to the point where he was to station himself and be doing his part of the actual transaction. The robbing party went to their car, and after driving a little way decided that they had too much in the way of grips and overcoats in their car and that they would go down and find appellant and leave two suit cases with him. They drove to Jackson street, the street on which the post office was located, and down near the post office about at Houston street, and when near Houston street they parked their car and then discovered appellant's car not far away. When they went to appellant's car, he walked up from some nearby place, and they explained to him and put the suit cases in his car and then drove on up to the post office, where the scheme was executed, as far as the robbery and murder were concerned, in a few minutes. Appellant's car was parked on Jackson street just around the corner from Houston street, and they left him standing on Jackson street by a drug store in plain sight of the post office and where he could observe whatever was done around it and in a position where his car could fall in behind the robbing party if necessary. Almost at once after getting into the post office, the shooting took place in which Mr. Street was killed, and the whole occurrence was over in a very short time. A large number of shots were fired. The party secured several sacks of mail or money and jumped into their car, the engine of which was left running, and drove out Jackson street over the route agreed upon to the appellant's house. They did not observe appellant as they left the post office and drove away. Some of them looked back but saw no one pursuing them. After they got to appellant's house, to quote from witness Scrivenor:

"About the time I got in the room, Mr. Rowan came in. He rushed in the room and says, `Well, boys, everything is all right; nobody followed you.' He says, `I have been behind you all the way,' and he says, `You got clean away.'"

Witness then detailed the opening of the sacks, the division of the money, and that he and another took their part together with the mutilated sacks, the certificates, and other things which they did not divide, and left in a car to go to Fort Worth. He also detailed their leaving the loot where it was found by the officers later.

Do the above facts, if believed by the jury, show that appellant was doing his part of the scheme or plan agreed upon at the time of the homicide? We are constrained to believe they do. Omitting the question of corroboration of an accomplice, which will be discussed further on and is a different question from that now before us, we observe that appellant's part of the plan was to place himself where he could render aid in preventing pursuit and capture, if necessary. If the robbers were followed — and only in such event — was he to become active in the proceedings. In such event he was to drive in ahead of the pursuers, manipulate his car, strip its gears if necessary, and thus with apparent innocence hinder pursuit and enable his confederates to make their escape. Pursuit in all human probability would emanate from the vicinity of the post office, the scene of the robbery. To station himself near the post office would appear to be the natural act of appellant under the circumstances. If no one followed from the neighborhood of the post office and reasonably near to the departure of the car containing the robbers, appellant's further active participation in preventing pursuit would seem needless. If he watched until sure that no one from the neighborhood of the post office followed or until the robbers' car turned into Young street from Jackson, he would seem to have carried out his part or so much of his...