Webb v. State

• Citation: 55 S.W. 493
• Parties: WEBB v. STATE.
• Decision Date: 07 February 1900
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

55 S.W. 493

WEBB v. STATE.

Court of Criminal Appeals of Texas.

February 7, 1900.

Appeal from district court, Evath county; J. S. Straughan, Judge.

Stanton P. Webb was convicted of robbery, and appeals. Reversed.

Martin & George, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of robbery, and his punishment assessed at five years' confinement in the penitentiary. Over his objection, John Currier was permitted to state that Jim Hammitt told him, in the town of Stephenville, on the day before the then pending trial, that he had never seen Richard Currier, the alleged injury party, play at a game with cards. This testimony was objected to, because immaterial, irrelevant, and an attempt to impeach Hammitt on collateral matter, and which testimony was calculated to "prejudice the rights" of the accused before the jury. The theory of the defense was, as stated in the qualification to this bill by the judge, that appellant won the money from Richard Currier at a game with cards; and it seems Hammitt had testified he had seen said Richard Currier play at a game with cards some time prior to the alleged robbery, but not in any way connected with this robbery. Richard Currier testified he did not play cards, and perhaps did not know how. John Currier was permitted to testify, upon the predicate being laid, that Hammitt told him he had never seen Richard Currier play at a game with cards. This testimony was properly admitted to impeach Hammitt.

His second objection discloses the fact that appellant was not arraigned, and did not plead to the indictment. Judgment was entered showing arraignment and plea of not guilty. This, however, was eliminated from the judgment by the court, but the court refused to make the judgment affirmatively show there was no arraignment and plea made by defendant, on the ground that this matter did not come before the court until after conviction. Prior to the act of March 3, 1897 (Acts 25th Leg. p. 11), whenever the judgment failed to show the plea by defendant, it was cause for reversal, and could be taken advantage of for the first time on appeal. To avoid this, the legislature amended the statute so that now this court shall presume that venue was proven in the court below, that the jury were impaneled and sworn, that defendant was arraigned, that he pleaded to the indictment, and that the charge of the court was certified by the judge and filed by the clerk before it...