The subject of the robbery was Felipe Rivera. According to his testimony, appellant perpetrated the robbery, presenting a pistol and demanding the money of Rivera. He paid close attention to the appellant at the time, though he had never seen him before and did not know his name. About three weeks after the robbery, Rivera went into the Model Bar, and observing the appellant, Burkhalter therein, accosted him, and called him a thief in Spanish. Burkhalter made no reply but put his hat over his face. Rivera said to his boss, in the presence of the appellant, that the appellant was the robber. The boss undertook to call the police. Burkhalter endeavored to get outside, and he was retained by Rivera and his boss.
On the trial, Rivera identified the appellant as the man who committed the offense. There was cross-examination of the witness Rivera and the introduction of excerpts from his testimony upon the examining trial for the purpose of impeachment.
Appellant testified to an alibi and produced testimony of others supporting this theory.
Stress is put on contradictions in the testimony of Rivera, and its inconsistency with other testimony in the record. It cannot be questioned that Rivera testified that the sum of five hundred dollars was taken from his pocket by the appellant, he controlling Rivera by the use of a pistol; that Rivera subsequently identified the appellant *Page 514 as the assailant, caused his arrest and pointed him out at the trial. The statute, Article 786 of the Code of Crim. Proc., declares that in all cases the jury are the exclusive judges of the facts proved, and the weight to be given to the testimony. It is true that when the verdict is manifestly wrong and it is clear that an injustice has been done, the conviction should be set aside though there be evidence supporting the verdict. Walker v. State, 14 Texas Crim. App., 609; March v. State, 3 Texas Crim. App., 335; Lockhart v. State, 3 Texas Crim. App., 567; Vernon's Tex.Crim. Stat., Vol. 2, p. 609. This rule, however, is not to be construed to authorize the court to ignore the statute mentioned and determine the weight to be given conflicting testimony, but will be found applicable to cases of circumstantial evidence in which the court is convinced that the inference of guilt is not established by the proven facts. Walker v. State, 14 Texas Crim. App., 609; Lane v. State, 19 Texas Crim. App., 70; Welch v. State, 57 Tex.Crim. Rep.; Murphy v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 616; Hollins v. State, 71 Tex.Crim. Rep.; Vernon's Tex.Crim. Stat., Vol. 2, p. 690, note 17, p. 691, note 18. In the instant case, the evidence is direct, not circumstantial. The injured party testified that he was assaulted and robbed by the appellant. The court is not warranted in disregarding it because the witness was impeached by conflicting statements, nor because it was contradicted by the appellant and his witnesses. Bailey v. State, 63 Tex.Crim. Rep.; Robertson v. State, 68 Tex. Crim. 243, 150 S.W. Rep., 893; Riley v. State, 4 Texas Crim. App., 538; Vernon's Texas Crim. Stat., Vol. 2, p. 688, note 5.
Rivera testified that, at Miller's solicitation, he went to the place where the robbery occurred upon the representation of Miller that he was going to see an automobile which was for sale. When they reached a point a few yards distant from that at which the robbery took place, Rivera saw a man among the weeds. Miller's attention was called to the man, and Rivera was informed that he was but a care-taker. Soon after Rivera and Miller came near to the place where the man was hidden, the appellant, presenting a pistol, demanded that they raise up their hands. This Rivera did, according to his testimony, and at Burkhalter's command, turned his back while the appellant, holding the pistol against him, searched him and took from him five hundred dollars in money. During the transaction, Miller and Burkhalter were talking together in English which Rivera did not understand. Burkhalter at first failed to find the money, but upon research discovered it. A short time after Rivera and Miller had separated from the appellant after the robbery, when they were a distance of about twenty-five or thirty yards, Miller requested Rivera not to report the matter; that he (Miller) would pay him the money, and in that connection gave to Rivera an obligation to do so in eight or ten days. *Page 515
On cross-examination, Rivera said that during the robbery Miller and Burkhalter were conversing, though he did not understand what they said, but that Miller was trying to convince him to give up the money, saying that he (Miller) would pay it back; that Miller persuaded him to let the robber have the money; that he did not give it up because Miller told him to, or because he thought that the money would be given back to him, but that the man took the money from him; that the man held him up and took it; that Miller did none of the searching but that the other man did so. On this testimony, appellant insists that the court should have submitted the issue of fact whether the money was surrendered by reason of the assault or by reason of the persuasion.
Referring to the rule requiring that affirmative defenses be submitted to the jury, the appellant complains that his exception to the charge criticising it for its failure to instruct the jury that if Rivera consented to the taking of his money, the offense was not robbery as charged in the indictment. Of course, if Rivera consented to the robbery, the offense was not committed. Tones v. State, 48 Tex.Crim. Rep.; Cyc. of Law Proc., Vol. 34, p. 1801. The court embodied in his charge an instruction to the effect that as a predicate for conviction the State must prove that the money was taken from Rivera by assault, putting him in fear of death and against his will. There was no claim of right to the money in either appellant or Miller. Consent, so far as it was an issue, was, in our opinion, sufficiently embraced in the main charge.
The quoted testimony of Rivera does not, in our opinion, suggest an issue of his willingness to part with his money, or that he lost possession from any cause except that of constraint under which he was placed by the appellant and his confederate Miller.
There is complaint of the failure to embrace in his charge the law of conspiracy, and to define the circumstances under which the acts and declarations of conspirators are admissible against each other. There is no explicit suggestion in the exception touching how or why the subject should have been charged upon. The connection of Miller with the offense, as detailed by the prosecuting witness Rivera, characterized him as a principal offender. He was present and aided and encouraged the robbery, to say nothing of his devices to bring Rivera within the power of the robber. Miller was not on trial and the State did not rely on his acts. The necessity for an instruction on the law of principals or conspirators in the trial of appellant upon whose acts in making the assault the reliance of the State was placed, is not perceived.
We find a general exception to the court's charge on the ground that it failed to limit the testimony touching the declarations of Miller and that impeaching the witnesses Williams and Wein. In the absence of some designation of the matters of which the limitation was *Page 516 demanded, we are not able to know the merits of this complaint. The statute, Article 735, Code of Crim. Proc., requires that objections to the charge be specific. To comply with this demand, there should be designated in the exception itself, a special charge or bill of exceptions embracing the testimony which appellant desired should be limited. Article 743, Code of Crim. Proc.
In the direct examination of Rivera, he declared that at the time of the robbery and while it was in progress, Miller told him to submit to the taking of the money; that otherwise he would be killed by appellant; that he would be repaid by Miller. This occurred in the presence of appellant. As Miller and Rivera were leaving and while appellant was a few steps distant, Rivera expressed to Miller his intent to report the robbery to the police. Miller requested him not to do so, and said that in about eight days he would repay the money. Miller at that time signed a written agreement to repay the money. This agreement was before the jury. Appellant's arrest did not occur for some twenty days later.
The credibility of Rivera's testimony was attacked by cross-examination on the theory that the delay in reporting the robbery discredited the witness. It appeared that the money lost was money that belonged to the employees of Rivera. The court received over appellant's objection testimony of Mrs. Rivera that on two occasions within four or five days after the robbery, Miller was at her home and that on one of those occasions she asked Miller about repaying the money according to his agreement, and told him that unless he did so, Rivera would lose his job; that Miller said he would pay it. This was hearsay. However, it added nothing to the undisputed fact that Miller had, in writing, promised to pay the money to Rivera. The trial court received it on the idea that it rebutted the appellant's theory that the delay of Rivera in making the complaint discredited him. It did bear on this phase of the case, but still Miller's promise to repay the money to Mrs. Rivera would be hearsay, since, however, it was but repetition of the promise proved without dispute, we think its effect was not of importance such as justifies a reversal. (See Kounts v. State, recently decided.
In his motion for new trial, appellant alleged that one Lawson had confessed to one Race that he and not the appellant committed the robbery and that Lawson exhibited to Race the money taken from Rivera. The affidavit of Lawson was produced but the court refused to consider it because Lawson was a convicted felon, confined in the Federal penitentiary. Race's affidavit was not obtained. Race, if present, could have merely related that Lawson had admitted that he was the offender. Our courts have often decided that such an admission is hearsay and inadmissible when the State's case rests on direct testimony and the admission was not res gestae. Bowen v. State, 3 Texas Crim. App., 617; Holt v. State, 9 Texas Crim. App., *Page 517 571; Horton v. State, 24 S.W. Rep., 28; Hodge v. State, 64 S.W. Rep., 242; Blocker v. State, 55 Tex.Crim. Rep.; Walsh v. State, 85 Tex.Crim. Rep.; Greenwood v. State,84 Tex. Crim. 548; Amer. State Rep., Vol. 131, p. 778, note.
Other questions presented in the motion, have, in our judgment, been properly decided and sufficiently discussed in the original opinion.
The motion is overruled.
Overruled.
ON REHEARING. January 17, 1923.