Terry v. State

• Decision Date: 24 February 1937
• Docket Number: No. 18828.,18828.
• Citation: 103 S.W.2d 766
• Parties: TERRY v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W.2d 766

TERRY v. STATE.

No. 18828.

Court of Criminal Appeals of Texas.

February 24, 1937.

Rehearing Denied April 14, 1937.

Appeal from District Court, Denton County; B. W. Boyd, Judge.

Jack Terry was convicted of robbery, and he appeals.

Judgment affirmed.

John L. Poulter, of Fort Worth, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The offense is robbery; penalty assessed at confinement in the penitentiary for five years.

The evidence heard in the trial court is not brought forward for review. In the absence of the statement of facts, this court is unable to appraise the bills of exception found in the record.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

The judgment was affirmed at a former day of the term, there being at that time no statement of facts in the record. It is shown that by oversight the district clerk omitted the statement of facts from the record when same was transmitted to this court. The statement of facts is now here and the case will be considered on its merits upon this motion for rehearing.

The indictment charged appellant with the robbery of R. E. Lee by assault and exhibiting a pistol. On the 11th of August, 1935, a number of parties were engaged in a poker game near a creek. Lee was present but not in the game. Two men appeared on the scene, one armed with a small caliber rifle, the other, with a pistol. They ordered all parties to put up their hands, and took the money which was in the game and also took money from some of the parties, including a dollar and a half from Lee. Appellant was identified as the robber who had the pistol by Lee and some of the others who were present. Other parties present testified that appellant was not one of the robbers; and some were uncertain about it. Appellant did not testify, but witnesses called by him testified to facts which, if believed, would have placed appellant in Fort Worth at the time of the robbery. All of these fact matters were for the jury. There is evidence supporting the verdict.

Lee and Gadsberry, state's witnesses, testified upon the trial and identified appellant as one of the robbers. Bills of exception 1 and 2 bring forward complaint because, over objection, state's counsel was permitted to ask each of said witnesses whether there was any doubt in their minds as to appellant being one of the robbers, to which question each of the witnesses answered, in substance, that he was sure appellant was the man who held the pistol on them and took their money. We discover no error in the matter complained of.

In bill of exception No. 4 appellant complains of the examination of the witness Lines upon the point of the identity of appellant as one of the robbers. Witness testified that he thought one of the robbers was appellant, both from his looks and voice, but that he did not want to swear positively that it was appellant. Objection was interposed when counsel for the state asked the witness if in his best judgment it was appellant. Several questions were then asked witness, the answers to which amounted to the witness saying, in substance that he thought all the time it was appellant and still thought so, and that he judged it to be appellant. A witness may state his belief or best impression or judgment as to the identity of a person. Branch's Annotated Texas Penal Code, § 2483, and cases there cited. See, also, Burks v. State, 97 Tex.Cr.R. 113, 260 S. W. 181; Morse v. State, 106 Tex.Cr.R. 520, 293 S.W. 568.

A witness named Sartin had testified on the present trial, and presumably a predicate for his impeachment had been laid by the state. The court reporter was called by the state as a witness and asked if Sartin at a formal trial of ...