Eaves v. State

The facts of this case have been but meagerly stated. They show, from the lips of appellant himself, that one Johnson came to him and Pettiett with a proposition to hold up and rob a garage owned by Miller Martin. Johnson assured said parties that if they went into the scheme he would secure and remove any arms in said garage so they would be in no personal danger. Appellant testified that Pettiett agreed to the proposition, but that he, appellant, refused to actually enter the garage and do the hold-up act, but that he did agree to drive Pettiett to said garage on the night in question, wait for him while he did the robbing, and help him get away. He also testified that he actually did drive Pettiett to said garage, and that he did remain at the curb in his car with the motor running while Pettiett entered the garage, presented a pistol at the occupants, and commanded them to "Stick 'em up," which they did. Pettiett had on a gauze mask when he went to the place with appellant and when he entered the garage. He shoved open the door of said building when he entered. He then pointed a pistol at the parties within, and ordered them to stick up their hands. At this juncture officers came on the scene, arrested appellant in his car, and then came into the building where a number of shots were fired. One witness said he thought Pettiett fired. Mr. Gordon, a deputy constable at Electra, said Mr. Martin had told him he thought there was going to be a hold-up that night, and that he, witness, went down to the garage to try to prevent it. He said after arresting appellant sitting in his car at the curb with the motor running, he started into the garage, and as he did so Pettiett "Turned the gun on me, — he turned facing me; I fired one shot at him."

Considering appellant's bills of exception and the contentions in his motion for rehearing, we observe that if there was any error in *Page 465 the action of the State in asking, in the presence and hearing of the jury, that the jurors be not excused from further service because of the fact there was another indictment pending against appellant upon which the State wished a trial, — same became harmless when appellant took the stand and himself testified that there were other indictments against him.

Bill of exception No. 2 shows that when appellant took the stand he was asked on cross-examination by the State if he was not under indictment "For three other offenses," and replied that he "Was under two other indictments." Without stating that there was objection to either question or answer, said bill sets out substantially what is stated in our opinion on the State's motion for rehearing. The trial court in instructing the jury not to consider evidence which had been introduced "tending to show that the defendant is under other indictments growing out of the same transaction," certainly does not state that he refers to what is contained in the question of the State, or the answer of the appellant, as set out in said bill of exception, — for in neither question nor answer is there one word said relative to whether such other indictments grew out of the same transaction or not. Just what testimony was in the court's mind when he gave such instruction? The bill is entirely silent on this point. What were the other indictments, if any? Both the bill and the record are silent on this point. The sum total of this court's information rests on the objection made by appellant's attorney as set out in the bill, and the court's statement in the charge to the effect that there was evidence tending to show that such other indictments "grew out of the same transaction." In the opinion of Judge Morrow herein the plain and clear statement appears that a "transaction" may comprehend several acts, either of an individual or a group. As applied to the instant case the words "same transaction" would comprehend the legally joint act of appellant and Pettiett in shoving open the door of the garage and thus committing burglary with intent to rob or kill; also the act of pointing a pistol at White, or the other persons in the garage, with intent to kill them if they did not comply with Pettiett's demand to stick them up, — which might be an assault to murder; or by pointing the pistol at Gordon when he came into the garage, which might be a different assault to murder; or in an assault to rob when by word and act Pettiett commanded the occupants of the garage to "stick 'em up."

In other words, appellant asks us either to vary from the settled and uniform holding of this court that a bill of exception must manifest within itself the error complained of, and that we look to some *Page 466 other part of the record to try and see if there be error; or else he wishes us to commit ourselves to the fundamentally unsound proposition announced by the trial court in the charge, viz.: that in all cases evidence tending to show that there are other indictments growing out of the same transaction must be rejected. We regard the law of both contentions as well settled against appellant.

It is also urged that appellant must have been injured by something because he got seven years when he might have been given two by the verdict of the jury. This carries with it the suggestion that a jury composed of ordinarily sensible men would have been uninfluenced by plain facts reasonably showing that two men with pistols and mask, purposing to rob, — burglarize, — or if necessary take human life, and would have given one of the perpetrators only the minimum penalty upon consideration of the facts; but that they had been aroused and inflamed by the fact that a grand jury had concluded from the facts which were all developed and placed before this jury on this trial by testimony, that there was more than one crime committed, and that there should be more than one indictment and prosecution, and, therefore, they returned other indictments growing out of the same transaction. We are not in accord with appellant's contention that to prove other indictments for offenses growing out of the same transaction would necessarily be held to have produced such result.

Appellant made no effort to show either by other testimony from grand jurors or other witnesses, or by the production of the other indictments in question to make plain that said other indictments were for the same act which forms the basis of the instant prosecution; nor did he ask any such instruction to the jury from the court presenting any such legal proposition. We have not discussed the proposition that the court told the jury not to consider the testimony here discussed, nor cited from the many cases holding this to adequately care for such situation.

We believe the case was correctly decided and that the appellant's motion for rehearing should be overruled.

Overruled.