Vinson v. State

• Decision Date: 13 March 1940
• Docket Number: No. 20007.,20007.
• Citation: 137 S.W.2d 1048
• Parties: VINSON v. STATE.
• Court: Texas Court of Criminal Appeals

137 S.W.2d 1048

VINSON v. STATE.

No. 20007.

Court of Criminal Appeals of Texas.

March 13, 1940.

Appeal from District Court, Falls County; Terry Dickens, Judge.

Sherwood Vinson was convicted of robbery, and he appeals.

Judgment reversed, and cause remanded.

Bartlett, Carter & Rice and Robert G. Carter, all of Marlin, and Percy Foreman, of Houston, for appellant.

John C. Patterson, Crim. Dist. Atty., and Chas. E. Reagan, Asst. Crim. Dist. Atty., both of Marlin, A. C. Winborn, and Spurgeon Bell, Asst. Crim. Dist. Attys., both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for robbery, punishment assessed being ten years in the penitentiary.

The prosecution originated in Harris County, Texas, under a joint indictment charging appellant, Blackie Blackshear and D. L. Phifer with robbery. Upon application of appellant the venue was changed to Falls County, Texas, where the case against appellant was tried, and it is from a conviction in the District Court of said county last named that this appeal is prosecuted. The companion case against Blackshear is reported in Blackshear v. State, 137 Tex.Cr. R. 264, 128 S.W.2d 1205.

On March 26, 1937, at twelve o'clock noon five men held up and robbed A. B. C. Store No. 6 in Houston. They were armed with a sawed-off shotgun, rifle and pistol, and were disguised in various ways. As the robbers were leaving in a car two police officers arrived in their car and gave chase. After it continued for two or three blocks parties in the robbers' car began shooting at the officers. A running gun fight between the officers and the robbers continued for a distance of about five miles. At one point in the pursuit the robbers' car stopped and four men got out of the car. It was wet and muddy at this point, and one witness testified that the robbers got in the mud while out of the car. The officers' ammunition became exhausted and they abandoned the chase. It could not have been later than one o'clock P. M. when the officers abandoned the pursuit of the robbers.

Some witnesses at the scene of the robbery and during the pursuit identified Blackshear, others identified Phifer, and others identified appellant as among the robbers, but no witness identified all three of them, and some witnesses at the store who knew appellant declined to identify him, and some testified that he was not one of the robbers. Two of the robbers were not identified by any witness.

Appellant did not testify upon the trial but by evidence of other witnesses raised the issue of an alibi, which was properly submitted by the court.

Appellant brings forward complaint at the admission in evidence of testimony as to shooting by the robbers along the line of flight, in front of a school house, near the Bowman residence and at the Flanagan residence. It will be seen by reference to the opinion in Blackshear's case, supra, that complaint was presented to the same evidence as here objected to, and there held to have been admissible under the circumstances shown. The same ruling is called for in the present case.

A question is presented by bill of exception number 1, which we believe reflects error.

We copy a part of said bill.

"Be It Remembered that upon the trial of the above entitled and numbered cause, the State introduced the following testimony, over the objection of the defendant, and after City Detective V. H. Clark of the Houston Police Department on voir dire examination had testified:

"(1) That the robbery of the A. B. C. store for which defendant was on trial was not committed within his presence or view;

"(2) That it was not committed, within his knowledge, within the view of any magistrate;

"(3) That no magistrate nor judge ordered him to arrest the defendant;

"(4) That no one told him the Defendant was about to escape;

"(5) That at the time he was told to arrest the Defendant and before he arrested him, said witness knew that Defendant's home was at 218 South 75th Street, Houston, Texas, where the arrest was made, and that he lived at said address;"

It is not necessary to copy paragraphs 6, 7, 8 and 11 of said bill, but they reflect that from the time the witness was directed to arrest appellant three Justices of the Peace were available from either of whom witnesses could have secured a warrant of arrest for appellant, or a warrant to search his residence, and that witness had ample time to secure same.

Paragraph 12 of the bill follows: "(12) That witness got orders to arrest the defendant around six o'clock in the afternoon of March 26th, 1938, and arrested him about 12:30 on the morning of the 27th, and at the time he was told to arrest the defendant he was likewise told that defendant's home was at 218 South 75th Street, Houston, Texas."

The bill then recites that over appellant's objection the witness among other things testified as follows: "I, in company with other officers, arrested the defendant the same night after the holdup that day, which occurred somewhere around noon. We arrested him around 12:30 or a quarter to one on Friday night in the house at 218 South 75th Street. Arrested with him were Blackie Blackshear, D. L. Phifer and Bobby Harris, a woman * * * As to whether I noticed anything on their clothes, Blackshear was in shorts; his pants and shirt were off. Phifer was in shorts; I believe he had his shirt on. Sherwood Vinson was in pajamas * * * Their clothes were lying in the room, muddy and soiled around, and their shoes were muddy. We brought them to the station. The defendant put on those shoes I said were muddy and wore them away."

The objection urged to the evidence follows as reflected by the bill:

"* * * we object to any testimony or questions by the District Attorney or answers by the witness to the effect that the Defendant was arrested in the presence of D. L. Phifer or H. D. Blackshear for the reason that numerous witnesses, to-wit Robert McCandless, Roy A. Reid and August Priest have positively identified...