Conviction for robbery; punishment, twenty years in the penitentiary.
There are a number of bills of exception in the record. There was objection to the introduction of appellant's confession *Page 350 on the ground that same could only be used in connection with a trial for the substantive offense stated in the warning given to appellant, as that charged against him. In other words, it appears that in said warning it was stated that appellant was charged with being an accessory to assault to murder, while on the instant trial he was tried for robbery, hence the confession was not admissible. This trial was for the same acts, transaction and offense for which appellant was then charged. Without discussing the matter, this court seems to have uniformly held against such contention. Knuckles v. State, 55 Tex.Crim. Rep.; Johnson v. State, 67 Tex. Crim. 95; Coomer v. State, 97 Tex.Crim. Rep.; Phillips v. State, 102 Tex.Crim. Rep.; Pretre v. State,112 Tex. Crim. 463.
In bill of exception No. 2 appears complaint of the fact that the state's attorney had brought into the courtroom a suit of clothes, to the introduction in evidence of which appellant objected, and that the state's attorney continued to ask questions relating to said suit of clothes after the jury had been returned after they were withdrawn and it had been developed in their absence that there was a search of appellant's residence and under it, without a search warrant. The bill of exception states that the court concluded that the search of said private residence was illegal, and that all evidence obtained by such search was in violation of law, and particularly that the clothes should be removed from the courtroom and not used in evidence. It further appears that after this ruling was made the district attorney introduced in evidence the confession of the accused, and certain oral statements made by him by means of which evidence was discovered which tended to connect the accused with the crime. The complaint appearing in the bill of exception is that the state's attorney repeatedly asked thereafter about the things that were found at and under appellant's house. In the qualification of the bill it is stated at length that the clothes under the house, certain shoes, a .41 calibre pistol shell, and certain other evidence of some one having been under the house and fed there, were found as a result of statements made by appellant while in jail, both in the written confession and in oral statements. That such matters were conducive to establish appellant's guilt was clear. That they were not found by any search made before appellant confessed and made the statements referred to, is also clear. In the qualification of the bill it is certified by the court that the clothes under the house were found as a result of statements *Page 351 made by appellant while in jail; that appellant told the officers while in jail to go search for and find the things, and that it would not be necessary to obtain a search warrant; that, after having so told the officers, they found under the home of appellant the clothes, shoes, shell, etc., the questions regarding which are objected to in this bill of exception. As qualified we do not think the bill of exception presents any error.
On the same night of the alleged robbery, at about 2 a. m., during which it appears the robber's hand was cut by glass and bled freely, it was in testimony that about 4 or 5 o'clock a. m., Flynn, the robber, went to the house of a Miss Dunaway and wished to call Mrs. Raulie over the telephone. The witness informed him that she had no phone, but that he could find one not far away. The next morning she discovered blood on her step and porch. Complaint of the reception of this evidence is in bill of exception No. 4. It was also in testimony by a Mr. Rose that he was night watchman in a mill, and about the hour mentioned, to-wit, 4:30 or 5 o'clock a. m. on the night of the robbery, Flynn came to his place and telephoned to the Raulies and got witness to put down for him on a piece of paper a street number obtained over the phone. This witness also observed that Flynn was bleeding and had his hand wrapped up in a handkerchief. Complaint of the reception of this testimony appears in bill of exception No. 3. At the time this testimony was introduced appellant was on trial upon an indictment containing two counts; one charging robbery, and the other with being an accessory to the crime of robbery. The testimony was pertinent and permissible. The fact that at the close of the testimony in the case the state elected to prosecute upon the first count charging appellant with robbery, would not seem to render effectual appellant's complaint in either of said bills of exception in view of the fact that no request appears to have been made after the state made its election, to have the jury instructed not to consider the testimony. In our judgment the testimony would have been admissible even had such request been made.
If the state's theory be correct in this case, appellant and one Flynn were operating together, in pursuance of a conspiracy, to rob the members of a group of men who were engaged in a crap game at about 2 o'clock in the morning of February 15, 1931, in the town of Plainview. The testimony shows that appellant had brought Flynn from Clovis, New Mexico, to Plainview that day; that he had supplied Flynn with a suit of clothes and a handkerchief, and had brought him down town *Page 352 and left him about 4 o'clock in the afternoon of the day preceding the night of the robbery, and had seen him again at 9 o'clock that night. The testimony further discloses that about 10:30 that night appellant had carried one Cawthorn home in his car. Cawthorn testified that appellant had in the car at that time a pistol which he stated to Cawthorn was loaded. He exhibited the pistol to Cawthorn. At about 11:30 p. m. appellant went to the place where the gambling was going on and engaged in the game, stating at the time that he wanted to be notified when 1 o'clock came as he had an appointment. At 1 o'clock he left the room, saying he was going to get some whisky, returned with some whisky, and presently left the room again and came back, and in a few minutes thereafter Flynn knocked at the door, came in, breaking the glass in the door, holding in his hand a pistol, and commanded the party to put their hands up, and proceeded to go through their pockets. Appellant put up his hands along with the others, and the testimony of a number of witnesses was to the effect that appellant fussed, kicked, and hit at and abused Flynn while he was going through his pockets, but did nothing further. The testimony shows that after having gone through the pockets of two or three of the party Flynn approached Cawthorn who threw himself through the door of the bath room and on the floor, at which time Flynn began shooting toward the left or north; this appellant being toward his right and south. Flynn shot three members of the party, and then left the room. The pistol was picked up just outside the house, and was identified as appellant's pistol. In his confession appellant admitted that the pistol was his, and claimed that Flynn had stolen it from him that night. Cawthorn testified that the pistol found outside the door was very much like the pistol he saw in appellant's possession at about 10:30.
Without setting out at greater length the facts in this case, they seem sufficient to support the conclusion reached by the jury that appellant and Flynn were coprincipals working together to rob the parties engaged in said game. Manifestly the object of the robbery would be the acquisition of the money of said parties, and the object of the conspiracy would not be complete until the money so obtained had been divided between the parties thereto. The movements of Flynn and his efforts in the nighttime to locate and get back to the home of appellant would be provable as circumstances affecting the question of the acting together of appellant and Flynn. In his confession appellant admitted that when he got home after the robbery *Page 353 he found Flynn there, and that Flynn was wearing a suit of clothes furnished him by appellant. Appellant claimed he made Flynn give up the clothes, but further said he concealed Flynn under his house, and put the clothes under there with him, and that he told his wife to keep Flynn out of sight and not let anybody get to him while he was under the house.
Appellant's bills of exception Nos. 5, 6, 7, 8, and 9 complain of arguments made by the prosecuting attorney. Each of these bills is qualified at length. A discussion of the arguments complained of and of the contentions of appellant regarding same would occupy space which we do not deem the questions involved of sufficient importance to require. We do not believe any of the arguments of such character as should call for a reversal of the case.
Believing the evidence sufficient to justify the jury's conclusion of guilt, and that no reversible error appears, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.