Spears v. State

• Decision Date: 11 January 1922
• Docket Number: (No. 6586.)
• Citation: 237 S.W. 270
• Parties: SPEARS v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 270

SPEARS v. STATE.

(No. 6586.)

Court of Criminal Appeals of Texas.

January 11, 1922.

Rehearing Denied February 8, 1922.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Robert Spears was convicted of robbery with firearms, and he appeals. Affirmed.

Hudspeth, Wallace & Harper, of El Paso, for appellant.

C. L. Vowell, of El Paso, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of El Paso county of robbery with firearms, and his punishment fixed at 15 years in the penitentiary.

Appellant and George Gunther were jointly indicted herein. There appears in the record a bill of exceptions to the action of the trial court in granting a severance. The contention seems to be based solely upon the ground that Gunther, codefendant of appellant, did not demand such severance We need not set out at length the recitals of the bill. The court appointed Hon. L. A. Dale to represent Gunther, who was without counsel. This being a capital case, it would appear to be the duty of the court to make some such appointment. Brotherton v. State, 30 Tex. App. 369, 17 S. W. 932; Brown v. State, 52 Tex. Cr. R. 267, 106 S. W. 368. The counsel so appointed for Gunther demanded a severance which was granted, and thereafter the court directed that appellant be placed first on trial. There seems to have been no affidavit made by appellant asking that Gunther be first tried as is provided by article 727, Vernon's C. C. P. We do not think any error is shown in the matter.

After the juror Cole had been selected and sworn herein, it was discovered that he had been convicted of a felony, and had served a term in the penitentiary. The juror was brought before the court and asked if he had been pardoned and his citizenship restored, to which he stated that he had, and he was then returned to the jury room and served as a juror herein. We do not think the objection of appellant to the action of the court in bringing said juror into open court and ascertaining said matters, was well taken. True, appellant offered to waive any objection based on said conviction, but it is statutory that the disqualification resulting from a felony conviction without subsequent pardon cannot be waived. Article 695, Vernon's C. C. P.; Rice v. State, 52 Tex. Cr. R. 359, 107 S. W. 832. The examination of said juror relative to this matter was not had in the presence of any other member of the jury or of the panel, and we are unable to discern possible injury to appellant, or ground of complaint.

We have carefully examined appellant's bill of exceptions No. 3, complaining that the witness Gere was allowed to testify that he first saw appellant in Albuquerque, N. M., January 28, 1921, and that he saw George Gunther and Mrs. Gregory, mother of appellant, in jail in Albuquerque on said occasion. There appear approximately two pages of the recitals of grounds of objection to the above testimony, but nowhere is there any statement of such facts as will enable us to know that the evidence was objectionable. The statement of his ground of objection by appellant's attorney does not establish the truth of the matters so stated. As far as we can learn from said bill, appellant may have been arrested on said occasion for the robbery herein, and there may be abundant testimony in the record making material the fact that the witness Gere saw Gunther and Mrs. Gregory in jail on said occasion. Unless the bill itself shows such facts as make apparent the error complained of, it will be of no avail.

Appellant's bill of exceptions No. 4 consists of two pages of questions and answers, many of which are clearly material, and to all of which a general objection and exception are addressed. In this condition the bill presents no error, so that same can be considered by us, but, in passing, we observe that it might be very material for the state to show when and where the alleged stolen property was found, and that Gunther, alleged coprincipal with appellant, was present and disclosing its whereabouts when same was discovered.

Complaint is made of the fact that the alleged injured party and owner of the alleged stolen property, outside of the courtroom, identified as his property the watch and stick pin taken from him at the time of the alleged robbery herein. Dixon, the alleged owner, was a witness on this trial. As far as the bill discloses, he identified, while a witness, without any contradiction or dispute, said property. The trial court's qualification to this bill sets forth that, by appellant's cross-examination of Mr. Dixon, and by the testimony of certain other witnesses, appellant sought to discredit Dixon and to show contradictory statements on his part. There being no dispute over the identity of said property, proof of such fact would be wholly harmless, if inadmissible. It is true that, in the absence of other evidence of ownership, such fact cannot be proven by testimony of ex parte identification of the property by the owner out of the presence and hearing of the accused. Anderson v. State, 14 Tex. App. 49; Cannada v. State, 29 Tex. App. 537, 16 S. W. 341. The bill complaining of this matter shows no error.

Appellant's bill of exceptions No. 6 consists of two pages of questions and answers, a part or all of the testimony of Mrs. Ella Gregory, the mother of appellant. We have held any bill of exceptions in this form to be not in conformity with the rules, and have refused to consider same. In stating his ground of objection to this testimony, appellant's counsel says that he was not permitted to make specific objections to the various questions propounded, but was given to understand that he could make any objections that were legal after the testimony was all introduced, and he thereupon proceeds to state many and various grounds of objection. The bill is approved by the trial court without explanation. We do not feel inclined to set the seal of approval upon such proceedings. The complaints of appellant are directed at no particular question, as should be done, but are stated in bulk at the conclusion of the testimony. We doubt the power of the trial courts to deny to the accused the right to state his objection to any proceeding; but, the appellant having taken no bill of exceptions to the denial of such right, the specific question is not before us. Nor do we believe this court called upon to consider objections stated in general terms as being to all of the testimony quoted in question and answer form upon certain subjects appearing in the evidence of a certain witness. The practice in regard to these matters is well understood, and should be adhered to. If the appellant does not care to insist upon his right to interpose objections to questions asked, he at least in stating his objections, must address them to particular questions. In view of the fact that this matter is here in this condition apparently for the first time, we have gone through the testimony set out in said bill of exceptions as well as the objections stated in bulk. We think it proper in a case such as the one before us to show that the witness Ella Gregory, mother of appellant, and a witness on his behalf, had been arrested and charged with crime imputing moral turpitude; that appellant and his codefendant, Gunther, left Texas together, and in a stolen automobile; that the witness was with them; that the party were arrested near a point in New Mexico where the alleged stolen property was afterward found. The insignificant details connected with these main facts, which appear in many of the questions, would not seem of any injury to appellant.

We find nothing in the cross-examination of appellant as set forth in bill of exceptions No. 7 which would present any reversible error. The fact that Gunther, codefendant with appellant, was in El Paso in response to letters written him by appellant, would seem material, as also the contents of letters written by appellant to Gunther telling him of conditions in El Paso, and that there was easy money out there.

Appellant's bill of exceptions No. 8 is in substantially the same condition as his bill No. 6, except that we are here confronted with five pages of questions and answers in the cross-examination of appellant. Again appellant's counsel states that he was not allowed to make objection as the trial proceeded, and again he took no bill of exceptions to the refusal of the court to allow him to make such objection, and again we are confronted by objections stated in bulk at the...