Appellant was convicted in the District Court of Clay County of the offense of robbery, and his punishment fixed at twenty years in the penitentiary.
Appellant was charged by indictment with the offense of robbery with firearms, it being shown that on the night of October 10, 1921, J.B. Givens was robbed by two men, one of whom used and exhibited a pistol, of $10.00 in money and of certain other personal property. Mr. Givens and his wife owned and operated a little store and gasoline station at Dean, a small village or postoffice eleven miles from Wichita Falls and between that city and Henrietta, county seat of Clay county. They lived in a room adjoining their store building, and at about 11 o'clock on the night in question were aroused by a person or persons wanting gasoline. Mr. Givens got up from his bed and opened the door, whereupon appellant and one Scott came into the house, asserting themselves to be officers to whom information had been given that Givens was handling moonshine liquor, and that they had come to search his premises and ascertain his guilt of said offense. Appellant gave his name as Belcher and that of Scott as Morgan, it being stated that they were officers of Wichita Falls. They made ostensible search of Mr. Givens' premises, including the store, and one of them assaulted him personally, and they took from his person and from the store the property described by him. The car in which they came was standing in front of the store and in it was a woman who remained in the car during the transaction. After the alleged robbery and at about 11:30 the parties left in said car going in the direction of Wichita Falls. Mr. Givens aroused one of his neighbors and telephoned into Wichita Falls regarding the affair, and later went to said city, and at still a later hour he identified appellant who was then in custody of the officers. After introducing Mr. Givens as a witness and the hearing of his testimony in which he positively identified both appellant and Scott, the State rested.
The defense relied upon an alibi. Appellant's father testified that he lived seven miles west and seven miles north of Wichita Falls, and that on the night in question and at 11 o'clock, appellant was at his house, having just come there from Wichita Falls for the purpose of getting from him some money. This evidence said he went to his nearest neighbor, a Mr. Temple, and got from him twenty dollars which he let appellant have. Mr. Temple later corroborated this and *Page 23 said that he saw a car in front of Mr. Fields' house and some one called to him from the car and he thought it was appellant. Appellant testified detailing his movements on the night in question in the city of Wichita Falls and until he left in a car going to his father's for the purpose of getting some money. He positively denied being out in any car with Scott or a woman on the night of the alleged robbery, and said he was not anywhere in the neighborhood of Dean on said night.
Appellant has four bills of exception complaining of the introduction of certain testimony from witnesses Boatenheimer, Johnson, Ray and Faubian. It is not necessary to set out the testimony of these witnesses at length, but witnesses Boatenheimer and Johnson testified that they saw two men and a woman in a car in the neighborhood of Dean on the night in question driving toward Wichita Falls, and that shots were fired from the car occupied by said parties. Boatenheimer identified appellant as one of said parties, and Johnson identified Scott as one of them. Boatenheimer and Johnson were in separate cars when they were passed by the party on the occasion in question. The witness Faubian said that appellant, giving his name as Belcher, came to his house in Wichita Falls on the night of October 10th at about 9:30 o'clock claiming to be an officer ferreting out violations of the liquor laws and searched his house under such pretense, and that Scott and a woman were near by in a car. Ray identified appellant as a man who came to his house on that night with Faubian. We think all of this evidence admissible as rebutting appellant's alibi and as showing the falsity of his contention that he was not with Scott and a woman in a car at any time on said night, and further as showing that three parties answering the description given by Mr. Givens, one of whom was appellant and another Scott, were in the Dean neighborhood on said night.
Nor do we think the court erred in refusing to limit the testimony of said witnesses. An exception was taken to the refusal of the court to limit such testimony, but we find no where any special charge expressing appellant's desire that said evidence be limited to any particular purpose. We think said evidence admissible generally as bearing on the guilt of appellant and as identifying him and his party, and we think it wholly improbable that the conviction of appellant should have been in anywise based upon any of the separate offenses claimed by him to have been revealed by the testimony of said witnesses. It is too well settled to need citation of authorities that if the development of the proof sustaining issues in a given transaction carry with it matters which make out a violation of some other law, that such fact will not render said testimony inadmissible. In Bailey v. State, 69 Tex.Crim. Rep., 155 S.W. Rep. 536 it is said:
"It is the settled law of this state that it is only when proof of *Page 24 another offense is such that the jury might use that testimony improperly to convict for that collateral offense, instead of the offense charged and on trial, or make some other unwarranted use of that testimony to the prejudice of the defendant that it is necessary for the court to charge limiting the purpose for which such evidence is admissible. Where the testimony is simply used to prove up the case as res gestae, or to prove any fact that forms a part and parcel of the case on trial so as to show the defendant's guilt, it is not necessary to charge limiting the effect of such testimony. These principles are so accurately and tersely expressed by Judge Hurt for this court, after the most careful consideration, in Thornley v. State, 36 Tex. Crim. 125,35 S.W. 982, 61 Am. St. Rep. 836, we quote it: `Where the testimony is simply used to prove up the case as res gestae, or to prove any other fact that forms a part and parcel of the case, so as to show the defendant's guilt, and there is no probability of the jury convicting for the offense not charged, it is not necessary to limit the effect of the testimony. In fact, it is only necessary for the court to charge upon and limit said testimony when there is danger of a conviction for the offense not charged, or of an unwarranted use of the testimony to the prejudice of the defendant in the case in which he is being tried.' Moseley v. State, 36 Tex. Cr. 578, 37 S.W. 736,38 S.W. 197; Leeper v. State, 29 Tex. App. 63[29 Tex. Crim. 63],14 S.W. 398; Dugat v. State, 67 Tex.Crim. Rep., 46 S.W. 793, and cases there cited."
Appellant has a bill of exceptions to certain matters pertaining to the venire. Said bill of exceptions contains only appellant's motion to quash said venire and sets out no facts offered in support of said motion, nor is there any showing in the record which would appear to support the contention that the facts are as stated in said motion. A motion based on the absence of a seal, and a date, etc., etc., in any process or paper, which motion was overruled, brings nothing before us for review in the absence of some facts stated in the bill of exceptions or a setting out somewhere in the record of such paper making apparent some basis for such motion.
Appellant has a bill of exceptions because the court in his charge to the jury gave them an instruction and a penalty statement therein relative to the offense of robbery, and in another paragraph of the charge informed the jury of what might be their verdict and the penalty, in the event they believed the robbery was committed by the use of a firearm. It is not claimed that the law was incorrectly stated in either instance, but appellant complains because the matter was submitted in two separate paragraphs of the court's charge. We are unable to see any ground for such contention, nor do we believe that same was incorrect, or could have resulted in any injury. When a firearm is used in committing robbery a larger penalty may be inflicted than when no such weapon is used, and the statement of such *Page 25 facts in two separate paragraphs of the court's charge would seem in nowise different in legal effect from the connected statement thereof in one paragraph.
Nor do we think that part of the court's charge which instructed the jury to find appellant not guilty if they had a reasonable doubt as to his presence at the place where the offense was committed, open to any objection. The defense was an alibi, and if the evidence raised in the minds of the jury a reasonable doubt of the presence of the accused at the time and place of the alleged commission of the offense, he was entitled to an acquittal.
Appellant has four bills of exception complaining of utterances of the State's attorneys in argument. It is complained that at one time the statement was made that, "These old people are not rich and have never driven around in a Cadillac car," and that at another time the State's attorney said: "The defendant's counsel has drug into this case the time-worn reasonable doubt which has always been used to turn criminals loose," etc., and that at another time the attorney said: "If honest Faubian did not tell you the truth why didn't defendant send to Wichita Falls and get Bullington and show that Faubian was not honest," and that at another time the said attorney stated that, "The defendant has been charged with a number of offenses, and was never indicted for doing an honest day's work." The language of none of said charges is per se of such inflammatory or abusive character as to call for a reversal at the hands of this court; and in none of said bills of exception is there such showing of the antecedents or surroundings leading to the making of such remarks as would show to our satisfaction that any injury could have resulted. It would be impossible for arguments to be made in which the attorneys for the State were only allowed to reproduce and quote the language used by witnesses. Within reasonable limits it is proper to use illustrations and express views based upon matters growing out of or connected with the testimony of witnesses and the character of the offense and surroundings, antecedents, disposition, etc., of the parties.
Nor are we able to perceive any error in allowing the State's attorney to ask appellant relative to the matters that are complained of in bill of exceptions No. 12. The State had a right to cross-examine him when on the witness stand relative to the matters which it expected to prove by its witnesses reflecting the doings and whereabouts of appellant on the night of the alleged robbery, and to ask him if he was not at the places and doing the things which appeared in the testimony of the State's rebuttal witness later. The State has a right to impeach the defendant in a criminal trial and to lay a predicate therefor, and the laying of such predicate is not a violation of any rule. We have given each of the matters complained of by appellant our careful consideration, and have reviewed the authorities *Page 26 cited by him, but being of opinion that no reversible error appears in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. June 23, 1923.