Viley v. State

• Decision Date: 01 February 1922
• Docket Number: (No. 6604.)
• Parties: VILEY v. STATE.
• Court: Texas Court of Criminal Appeals

244 S.W. 538

VILEY v. STATE.

(No. 6604.)

Court of Criminal Appeals of Texas.

February 1, 1922.

Rehearing Granted October 18, 1922.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

Henry Viley was convicted of robbery, and he appeals. Reversed and remanded.

Roberson & Lopp, of Fort Worth, for appellant.

Jesse M. Brown, Cr. Dist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of the offense of robbery, and his punishment fixed at five years' confinement in the penitentiary.

Without going into details the facts show substantially that on the night in question the alleged injured party went to his boarding house and was confronted by three men on the porch, appellant and two other negroes being positively identified by said prosecuting witness as the three men. Witness said that one of them stuck a gun in his face and ordered him to "stick em up," and that he stuck up his hands, and that each of the three men participated in taking property from his person; one of them took his purse and money, and another took his tobacco pouch and a knife, and that appellant took his watch and chain. After getting his property, the three left, and were followed by said witness, who, after keeping them in sight for some time, went and procured officers with whom he further pursued the alleged robbers. Coming in sight of three men on a railroad track, the officers asked him if they were the ones, and, upon his affirmative answer, the car in which the pursuers were was stopped. Thereupon the parties on the railroad track took to flight, and the officers fired pistols. Appellant at once surrendered, and the other two fled further, and hid, one in a barn and one in a Mexican house, but were shortly afterward captured. All three of the men were taken to the city hall, and upon search the money and purse of prosecuting witness were found upon one of them, and the knife of said witness upon another. The watch of said witness was not found at that time, but was later found in a wagon near the route taken by the parties.

By a bill of exceptions complaint is made that certain statements of one Hill, one of the three parties accused of the robbery, were admitted on the trial of appellant. The ground of objection as stated to the lower court appears to have been that appellant was under arrest, had not been warned, and said statements were not reduced to writing and not shown to have been made in the presence of appellant, etc. We nowhere find in said bill of exceptions any statement that these grounds of objection, as stated, were in fact true. The trial court admitted the evidence. We must indulge all presumptions in favor of the correctness of the ruling. The mere statement of grounds of objection in a bill of exceptions is not equivalent to, nor does it do away with the necessity for, a showing in such bill that the matters stated as grounds of objection are facts. Unless this be shown, no error would appear. Funk v. State, 84 Tex. Cr. R. 410, 208 S. W. 509.

A number of complaints are made of the fact that there was no special venire drawn, and that appellant's request therefor was denied, and that he was refused a continuance for one day in order to look over a venire list, etc.

Appellant was charged by indictment with robbery, it being alleged that the offense was committed by an assault by violence and by the use of a firearm. It is made to appear by the court's qualification to the bills of exceptions that the state abandoned the death penalty, and no examination was made of any of the jurors relative to their attitude toward the infliction of the death penalty; and an examination of the charge of the lower court reveals the fact that no other theory of robbery was presented to the jury save that of an ordinary robbery by assault and violence. The issue of a robbery by firearms was not submitted. The jury were given no opportunity to inflict the death penalty, nor were any instructions relative to a capital offense given. It is only in a capital case that it is necessary to summon a special venire. The state may indicate to the court its purpose not to ask for a capital conviction in a murder case, and, if the court agree, and the issues pertaining to such capital offense be not submitted upon the trial, the failure or refusal to have a special venire to try such case would not be available to the accused. Gentry v. State, 68 Tex. Cr. R. 567, 152 S. W. 635; Clay v. State, 70 Tex. Cr. R. 451, 157 S. W. 164; Miller, v. State, 74 Tex. Cr. R. 648, 169 S. W. 1164; Walker v. State, 28 Tex. App. 503. 13 S. W. 860; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405; Crouch v. State, 87 Tex. Cr. R. 115, 219 S. W. 1099. We are of opinion that, under these facts appearing in the record, appellant was not entitled to a special venire, nor to any of the delays or other matters of procedure resting upon the selection of a jury drawn under such venire writ.

The evidence appearing in the statement of facts is very short. Appellant did not take the stand and testify. The prosecuting witness and the two officers were the only witnesses. The identification of appellant was positive. His guilt was undenied.

We find no reversible error in the record, and the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Article 1327, Vernon's Penal Code, reads as follows:

"If any person by assault or violence or by putting in fear of life or bodily injury shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and, when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death, or by confinement in the penitentiary for any term not less than five years."

Since the article was amended by adding the last clause, which enhances the punishment where a firearm or other deadly weapon is used, our decisions have not been harmonious relative to indictments charging the offense of robbery. See Murdock v. State, 52 Tex. Cr. R. 262, 106 S. W. 374; Green v. State, 66 Tex. Cr. R. 446, 147 S. W. 593; Bell v. State, 77 Tex. Cr. R. 146, 177 S. W. 966; Robinson v. State, 67 Tex. Cr. R. 79, 149 S. W. 186; Lay v. State, 82 Tex. Cr. R. 202, 198 S. W. 291. However, we regard the controversy as settled by the opinion in Crouch v. State, 87 Tex. Cr. R. 115, 219 S. W. 1099. Judge Davidson, who wrote the opinion in Murdock's Case, and dissented in Green's and Robinson's Cases, was a member of this court when Crouch's Case was decided, and agreed to the opinion without comment or dissent. We advert to the foregoing cases because some of them are referred to in appellant's brief on rehearing. In Crouch's Case the indictment charged as follows:

"Charles I. Crouch in and upon W. C. Carter did make an assault, and did then and there by said assault and by violence and by putting said W. C. Carter in fear of life and bodily injury, and by then and there using and exhibiting a firearm, to wit, a pistol," etc.

It was urged that the indictment was duplicitous. In discussing that question this language was used:

"It is apparent from the statute, that an element of robbery is an assault. To charge the offense of robbery with a deadly weapon it is obvious that an averment that in committing the robbery an assault with a deadly weapon was made would be appropriate."

Further commenting, the court said, in substance, that, where the robbery was charged to have been committed with firearms, the effect of it would be to confine the state to proof that, in committing the offense, firearms were used. After referring to the conflicting opinions heretofore noted, the court concludes the opinion in the following language:

"We are of the opinion that the view that the reference to the firearm or deadly weapon in the statute is but a matter of aggravation, and its embodiment in the indictment with the other elements of robbery does not render the indictment duplicitous."

It is apparent from a reading of article 1327 that the pleader may if he sees fit charge robbery in such a manner that it will be a capital case only. The indictment in the instant case, omitting formal allegations, charges that "Henry Viley did, by using and exhibiting a firearm to wit, a pistol make an assault in and upon one C. J. Brownie, hereinafter called the injured party, * * * and did then and there by means aforesaid use violence to and upon the said injured party, and by the use and exhibition of said pistol as aforesaid did put the said injured party in fear of life and bodily injury," and then further alleges the fraudulent taking of the property from the said Brownie. It will be readily seen that no assault or violence is alleged except with a pistol. Appellant filed a motion asking that a special venire be drawn and summoned from which to select a jury. He also filed an application for continuance in which he says that he is charged with a capital offense, to wit, robbery with firearms, and again requested that the cause be continued to a day certain and that a special venire be ordered by the court. These requests were overruled. The orders of the court contain no reasons for a failure to order a special venire, and the only reasons we find are in qualifications to bills of exception to the effect that the "state abandoned the death penalty," and that the "state did not qualify jurors with reference to the death penalty." The evidence shows that the only assault made to effect the robbery was with a pistol. When the court submitted the case to the jury, he did not submit the elements of robbery perpetrated in an assault with a pistol, but told the jury, in substance, that, if appellant made an assault upon the...