Wingate v. State

• Decision Date: 27 November 1912
• Citation: 152 S.W. 1078
• Parties: WINGATE v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 1078

WINGATE v. STATE.

Court of Criminal Appeals of Texas.

November 27, 1912.

On Motion for Rehearing, January 29, 1913.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

P. Wingate was convicted of assault with intent to rob, and appeals. Affirmed.

O. S. York, of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of the offense of an assault with intent to rob J. Gothier on or about March 4, 1912, and his penalty fixed at 10 years in the penitentiary.

Appellant's defense was alibi. This was correctly submitted by the court to the jury, and found against him.

A brief statement of the facts only is necessary. About 11 o'clock at night on said date charged an old gentleman by the name of Gothier was passing along one of the public streets in the city of Galveston about a block from one of the city street electric lights. Three negro men, apparently together, met him. One of them asked him for a match. He felt in his pocket, got the match, and handed it to that one. Then another of the three asked him for a match, and he likewise furnished him a match. The third at once, they all being right near him, drew a pistol—a six-shooter—presented it towards him, and demanded that he hold up his hands. Instead of doing so, the old man struck the pistol in this negro's hands, and knocked it out of his hands close to a brick wall, where a pistol was found the next morning. Immediately upon striking the pistol from the negro's hand, the old man ran from the scene as rapidly as he could halloaing, "Police! Police!" In about a half block from where the assault occurred, he met a man and his wife, to whom he then and there told what occurred, and the manner of its occurrence. He was then greatly excited. There were two patrol policemen near this scene, but neither of them saw the actual occurrence. Immediately upon the old man striking the pistol from the negro's hand and running, the three negroes themselves ran away from the scene; appellant going in one direction and the other two in another. These policemen saw these parties running away from this scene, and identified and swore positively to the identity of the appellant as one of them. The police at the time they saw appellant running away from the scene and the others too, did not know, and up to that time had no information, that this assault had been committed upon this old man, but very soon thereafter, having telephoned into headquarters as was their custom from time to time, were informed of it, it having been telephoned to police headquarters by the man with his wife to whom Gothier ran and told of it immediately after it occurred. In the meantime the two officers who saw the other two parties other than appellant, suspecting that something had occurred, or else they would not have been running away as they were, undertook to arrest them. They did not submit to arrest, and declined for the time being to be arrested by the police who attempted it. Other policemen came to his relief from different directions, and these other two parties, or one of them, backed into those coming to the rescue, and was arrested by them. In a few hours afterwards appellant was also arrested at his rooming house, he then having gone to bed. They were all three taken to the city prison, and kept until next morning. The old gentleman, having been informed of it, went down, or was taken down, for the purpose of ascertaining the identity of these parties, and whether they were or not the parties who assaulted him the night before. Upon arriving there, he at once identified the three as the persons who had assaulted him, and identified appellant as the one who had drawn and presented a pistol on him, and demanded that he should hold up his hands. As stated above, the policemen also identified appellant as one of the persons who was seen running away from the locality where the assault had been committed just after it had been committed. The old gentleman on the trial and this policeman and others positively and unequivocally identified appellant—the old man, as the party who assaulted him and drew a pistol on him, and the others as the men seen running away from the locality of the assault just after it had been committed. The evidence is clearly and amply sufficient to sustain the verdict. Numerous witnesses for appellant testified that he was at his boarding house all the night of the robbery. They did not agree among themselves in all particulars as to where he was and what he was doing at the time from 8 o'clock at night till after the assault. However that may be, the jury, as they had the right, disbelieved his witnesses testifying to his alibi, and believed the state's witnesses, who clearly identified him as one of the parties who committed the assault.

Appellant has only four bills of exceptions in the record. The first is to the court's overruling his motion for new trial. His motion for new trial is based on many grounds. We cannot consider that as a separate bill.

The second bill states that the state introduced the following testimony, to wit (testimony of W. B. Wilkerson): "Q. State whether or not at the time the old man identified these three men as the men who held him up? Judge York: I object to that. The Court: Objection overruled. Judge York: Defendant excepts. A. Yes, sir. Q. Which one did he state, if he stated any, was the one that had the gun? Judge York: I object to that. The Court: Objection overruled. Judge York: I except. Q. Which one did he point out as the one with the gun? A. Wingate." The grounds of objection stated are that it was inadmissible for the state to attempt to have the complaining witness identify appellant at the police station while he was under arrest, forcing the defendant in that way and manner to testify against himself, and the testimony was simply bolstering up the testimony of the complaining witness. It will thus be seen by this bill that it is so meager and does not comply with the rules of the court universally acted upon as to authorize or require this court to consider it. It does not set out any of the proceedings in the court so as to enable this court to determine whether an error has been committed or not. It does not show who the witness was, when or where the circumstances were, or anything else that therefrom this court can tell any error was committed. Section 857, p. 557, and section 1123, p. 732, of White's Ann. C. C. P.

Besides this, the court, in approving the bill, qualified it by stating that the record shows that "by other competent testimony introduced without objections the fact of appellant's identification by the complaining witness at the police station was an established fact. It was uncontradicted." The bill, without the qualification, and especially with it, shows no reversible error.

The next bill, No. 3, is just as insufficient to require the court to pass upon it as the other. We get from it, however, that the appellant complained that the state could not prove by a police officer that he found in the street the next morning after this assault at night a pistol just where this assault is alleged to have been committed. This evidence was competent, and the court did not err in admitting it.

Appellant's other bill complains that the court erred in permitting the confession of one of the three persons who committed the said assault showing completely the facts and in substance as testified to by other state's witnesses and the assaulted party. This bill is likewise defective as the others. The court in qualifying it shows that the confession was offered and admitted as impeaching evidence, the record showing, as referred to by the court, that the appellant introduced Coleman as a witness who testified that he was one of the three who were indicted for this same attempted robbery, and that not only he was not there, but that the appellant was not there on the occasion of...