Turner v. State

• Decision Date: 27 November 1946
• Docket Number: No. 23492.,23492.
• Parties: TURNER v. STATE.
• Court: Texas Court of Criminal Appeals

198 S.W.2d 890

TURNER v. STATE.

No. 23492.

Court of Criminal Appeals of Texas.

November 27, 1946.

Rehearing Denied January 29, 1947.

Appeal from District Court, Upshur County; Otis T. Dunagan, Judge.

Raymond B. Turner was convicted of robbery by assault, and he appeals.

Judgment affirmed.

McIntosh & Duncan, of Gilmer, and Harvey P. Shead, of Longview, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of robbery by assault and assessed a penalty of five years, from which he appeals.

The facts produced by the State show that appellant, at a filling station at Gladewater, Texas, at night time, saw the complaining witness with a large sum of money in his hand; that such witness soon left in an automobile going towards Gilmer in Upshur County; that appellant soon followed the complaining witness, Robinson, and coming up with him, stopped him and demanded from him the sum of $25 as damages, claiming that Robinson had backed into appellant's car. An argument ensued and finally Robinson was jerked out of his car by appellant and others and knocked down, and about $250 were taken from him by force by appellant and his friends. Appellant's version of the transaction was entirely different, his testimony showing that in Longview earlier in the night, at a tourist camp, he had heard a lady cry for help, saying that she had been robbed, and that soon thereafter he saw Robinson come out of this lady's cabin, jump in his car, back the same into appellant's car, damaging the fender, and then drive rapidly away; that appellant pursued Robinson until they both came into the filling station above referred to, where he saw Robinson buy some gasoline, but he did not observe any roll of money; that Robinson left going towards Gilmer; that appellant and some boys whom he had picked up followed Robinson, overtook him, and appellant demanded pay for the damage to his automobile; that Robinson agreed to pay but wanted to go to Gilmer, to which appellant would not agree and demanded an immediate settlement whereupon Robinson started away and appellant grabbed him, and Robinson struck at appellant and they engaged in a fight in which Robinson was finally knocked down and said he "had enough"; that no one took any money from Robinson at such time.

It will thus be seen that a conflict in the evidence was presented to the jury, who decided the same against appellant's version thereof.

There are no bills of exception in the record save those leveled at the trial court's charge. The main objection thereto is directed to Paragraph 3 of the charge which reads as follows:

"You are further instructed that if the said Clifford Robinson was indebted to the defendant, by reason of damage to defendant's automobile, he would not have the right to extort money in payment thereof, if he did by assault, violence, and by putting the said Clifford Robinson in fear of life or bodily injury."

At the time this charge was prepared the trial court doubtless had before it an opinion in a recent case decided by this court on January 2, 1946, in Henderson v. State, 192 S.W.2d 446, 447, in which it was said:

"The court, in his main charge to the jury, instructed them as to the law applicable to the case, and included therein the following instruction: `The fact that the defendant claimed that said Condon was to blame in damaging his car would not give the defendant the right to extort money in payment thereof by assault or by putting said Condon in fear of life or bodily injury.'

"Appellant objected thereto on the ground that it was not the law applicable to the case; that it was an undue comment on the weight of the evidence; that it calls the jury's attention to the fact that the defendant attempted to and did extort money for damages by putting Condon in fear of life or bodily injury. The court overruled the objection with the explanation that appellant's attorney claimed that he had a right to assess the damages to his car and to collect the money by force, and that the court deemed it proper to advise the jury of what the law was on the subject, to which ruling appellant excepted. The trial court no doubt followed the instruction in the case of Fannin v. State, 51 Tex.Cr.R. 41, 100 S.W. 916, 10 L.R.A.,N.S., 744, 123 Am.St.Rep. 874, which is almost in identical language as the one here complained of. The objection in that case, as in the present instance, was that it did not state the law; that the contrary is the law. The trial court evidently deemed it necessary to advise the jury what the law was under the particular facts of this case. Whether or not the injured party ran his automobile into that of the appellant and injured it is not of...