Conviction for robbery; punishment, five years in the penitentiary.
This is the second appeal of this case. The former appeal will be found reported in 35 S.W.2d 163.
From the standpoint of the state the following were the facts: Mr. and Mrs. Green ran the Reed Filling Station in Glasscock county on August 23, 1929. About 4:30 a. m. they heard some one talking, and Mr. Green got up and went to wait on said parties. There were two men out there, one of whom was positively identified as this appellant. Mr. Green said that appellant walked up to him, stuck a six-shooter in his breast, and told him to "stick 'em, up." The other man took a flashlight from Mr. Green, walked into the house, and went into the cash register, getting therefrom something over ten dollars. *Page 178 Appellant was holding the pistol on Mr. Green while his companion got the money. Green identified appellant both by his appearance and by his voice.
Appellant introduced several witnesses who testified that they were acquainted with his good reputation for truth and veracity, and also for being a peaceable, law-abiding citizen, and that same was good. Appellant took the stand and testified that he was not at the Reed Filling Station on August 23rd, and that he did not participate in the robbery of Mr. Green. He admitted that he had passed said filling station about a week before the robbery and one Oberlechner was with him.
We find in the transcript a number of bills of exception. In the first and second of said bills complaint is made of the fact that Mr. Green was permitted to testify that some little time after the robbery he saw a man in Sterling City whom he then identified by his appearance and voice as being the party who was with appellant on the occasion of the robbery, and that he then learned the name of said party was Oberlechner. We do not think the admission of this testimony any violation of the rule rejecting testimony of conversations and transactions between other parties out of the presence of the defendant, or subsequent to the occurrence. We have been unable to perceive any possible injury, or ground of complaint of this testimony. It was not offered against Oberlechner, but upon the trial of this appellant. There was no question pertinent to the guilt of this appellant which could be strengthened or weakened by the admission of the testimony. We think the testimony admissible; but if there be any doubt thereof, it was of no possible harm.
Bill of exception No. 3 complains of the following occurrence: It sets out that while Mr. Green was testifying he was asked by defense counsel if Mr. Durham was district attorney at the time of prior trials of this appellant for this offense, and the witness answered that he was. He was then asked as follows: "He told you to tell the jury all that occurred there that night (referring to the night of the alleged robbery)?" It is then set out at great length that the witness did not upon the former trials identify Oberlechner as the man who was with the appellant, and did not then claim he had afterward recognized or identified said Oberlechner. As far as we can understand this bill of exception, it seems to be appellant's contention that the admission of said testimony would have a tendency to impeach Green. We fail to see that such facts set out would in any wise be an answer to the question propounded by appellant's *Page 179 counsel. We are further of the opinion that such attempted impeachment, if any, would be upon an immaterial matter. See section 173, Branch's Ann. P. C.
Appellant complains in two bills of exception that two of his witnesses were asked and compelled to answer, upon cross-examination, that they were upon appellant's bond. The identical question was passed upon adversely to appellant in Mobley v. State, 89 Tex.Crim. Rep., in which it was held that it was permissible to show bias of a witness by proof by him that he was on the bond of the accused.
Bill of exception No. 6 sets out that appellant asked his witness, who had testified to his reputation for truth and veracity, whether or not he considered the accused a man worthy of belief on oath. On cross-examination the state asked this witness if he would consider appellant worthy of belief in a case wherein he was charged with robbery. The bill shows that the witness did not give any answer to the question. We do not perceive anything in the mere asking of the question, of such prejudicial character as to call for a reversal.
Another bill complains of the refusal of a special charge seeking to have the jury told that unless the witness Green was put in fear of death or serious bodily injury at the time of the alleged robbery, the jury should acquit. The indictment charged all of the elements of robbery, viz., by assault, by violence, and by putting in fear, etc. The special charge requested was manifestly improper, and its refusal not error.
There was no error in refusing a special charge seeking to have the jury told that they could not convict appellant if the money taken was taken from the possession of the wife of Mr. Green. Mr. and Mrs. Green were both present at the time, she being in the room where the money was taken while her husband was on the outside. Under these facts it was proper to allege the ownership and possession in him, and not necessary to prove the property was taken without the consent of Mrs. Green.
In his argument to the jury the state's attorney said: "I say to you that the defendant did hold up that filling station." The bill presenting the complaint is qualified by the statement that the state's attorney further said: "Of course, Gentlemen, my argument is based wholly on the evidence in the case." We find nothing in appellant's exceptions to the court's charge.
Believing the record to manifest the fact that appellant had a fair and impartial trial, the judgment will be affirmed.
Affirmed. *Page 180
ON MOTION FOR REHEARING.