Appellant was convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary.
Appellant files a motion praying for a writ of certiorari to perfect the record, claiming that his amended motion for a new trial had been omitted from the transcript. As he accompanies his motion with a certified copy of the amended motion for a new trial, we will consider it as a part of the record, and pass thereon, without the necessity of having it brought up by certiorari.
The first ground complains that the court erred in not postponing this trial until the jury in the Dolph Cass case had arrived at a verdict. It appears that appellant and some five others were indicted in separate indictments charged with robbing one Jim Brown. They appeared and by proper affidavit asked that Barney Cass be first tried, Dolph Cass second, appellant third, and then the others in the order named. The court granted the motion, and first tried Barney Cass, and he was acquitted. Dolph Cass was then tried, and the cause submitted to the jury on the 17th day of September. The court waited until next morning, the 18th, for the jury to return a verdict, and they not having done so, he then called this case for trial. Appellant asked that the case be postponed until the jury in the Dolph Cass case should return a verdict. This motion was by the court overruled, to which action of the court appellant took a bill of exceptions. Appellant cites a number of authorities, holding that a right to severance in this State is mandatory. This is unquestionably the law, and the court granted the severance and placed the defendants on trial in the order requested, but we do not think the court was under obligation to wait an unreasonable time for the jury to return a verdict in the cases first tried. It has been frequently held that where the court grants a severance as requested, and places the defendants on trial in the order requested, he does not have to await the final determination of the case first tried before he proceeds with the trial of the others. (Myers v. State, 7 Texas Crim. App., 640; Krebs v. State, 8 Texas Crim. App., 1.) It further appears that after the trial of this case and verdict returned, the jury in the Dolph Cass case having failed to arrive at a verdict, it was discharged, and Dolph Cass again placed on trial on September 21st; he was acquitted on the second trial. While there was no error in the court refusing to postpone this case until the jury had returned a verdict in the Dolph Cass case, yet as he was subsequently acquitted during the same term, his testimony would be in the nature of newly discovered testimony, as he was not a competent witness at the time of the trial, and if his testimony was of a nature to be beneficial to the defense of defendant, he would be entitled to a new trial. No affidavit of Dolph Cass is in the record as to what he would testify in this case, the only thing being in the record is, the court ordered his testimony on his first trial attached to the bill of exceptions to his overruling the motion to postpone this *Page 74 case. The court saying: "The court refuses to delay this trial as requested, by counsel, for the reason that in the case, wherein the jury is now out said Dolph Cass testified fully and the court here now makes all of said testimony a part hereof; which testimony of said Dolph Cass shows that he, the said Dolph Cass, was not present at the time the witness Jim Brown was assaulted, if he was assaulted, and could not have known of any facts that took place at that time if there was such an assault, and that said testimony could not in any way benefit the defendant, B.K. Bruce, on this trial, reference being made to all of said testimony of record in said Dolph Cass case, which is made a part hereof." We have read this testimony, and we find that Dolph Cass testified, after reciting some incidents: "When that occurred I said something to Bonnie. I told Bonnie, less go. I says I don't want to fool with that old crazy nigger, and I commenced to walk on off, because I have been here about fourteen years and never paid a fine, and never been before no court, and I didn't want to be arrested, and I told Bonnie, less go. I says, don't fool with that old crazy nigger, and after I got on out, and I says, you better come on, and he came on, and we left from there and came on down by Joe Davis' around by the compress and come on straight up this street and went to the Metropolitan Cafe and got two sandwiches and two cups of coffee from Mr. Keegan, the night waiter, and eat them. I got them on a credit. And we were over there about, I don't know, we stayed there anyhow until about 6 o'clock and I came on back down here to work at the shop. I left Gus Wells down there and B.K. Bruce and John Crawford and that fellow Brown and Jim Wimms. There were five of them. I did not go back down there any more. I came from the Metropolitan Cafe to the barber shop, where I was at work." It will be seen that Dolph Cass testified he had left before the robbery is said to have occurred, and did not go back, and he places appellant at the place where the State's evidence showed the robbery did occur. Under such circumstances appellant is not entitled to a new trial to secure his testimony.
In the next bill appellant complains that he was, without his consent, forced to go to trial before a jury summoned by the sheriff and not the jury drawn for the week. The bill discloses that all the jurymen drawn for the week were used in the two companion cases first tried except five, and these five had been excused by the court. The court, in approving the bill, says that during the first trial he had requested all jurymen not empaneled on that case to remain out of the courtroom, and they had done so, but during the second trial the five not accepted on that jury remained in the courtroom and heard the evidence and were disqualified, and for this reason had excused them. Appellant accepts this bill as thus qualified and is bound by the qualification. (Hardy v. State, 31 Tex.Crim. Rep.; Levine v. State, 35 Tex.Crim. Rep.; Blain v. State,34 Tex. Crim. 448.) As qualified by the court the bill presents no error, for article 695 of the Penal Code authorizes and requires the court to have the sheriff to summon a jury when *Page 75 from any cause there are no regular jurors for the week from which to select a jury.
In the third bill it is contended that the court erred in permitting certain whisky bottles to be introduced in evidence. The State's prosecuting witness testified to having voluntarily furnished the money with which to procure the first bottle of whisky, and that he was compelled by defendant and the others to furnish the money to buy the remaining bottles of whisky. The whisky bottles were picked up at the place where the witnesses agree the game of craps took place that night. The appellant introduces witnesses to prove that the reputation of the prosecuting witness for truth and veracity was bad. They also denied that any whisky was purchased that night, but said that drinks were taken out of a bottle that the prosecuting witness had with him. Taking the labels on the bottles and other circumstances in the case, these bottles tended to corroborate the evidence of the prosecuting witness, and his reputation for truth and veracity having been assailed, there was no error in admitting the testimony, for the evidence in regard to the whisky was so entwined with the robbery transaction as to make it all a part of one transaction.
The only other bill of exceptions in the record complains of the action of the court in admitting the testimony of the witness Majors. This witness testified: "I remember the occasion along about the middle of August of this disturbance down here in nigger town. I was at the light plant that morning. I was not night watchman at the ice plant. I was fireman. I was working there at night. I was there about 4:30 or 5 o'clock in the morning. I saw this one-armed nigger, Jim Brown, that morning. He came to me some'rs between 4:30 and 5 o'clock'; some'rs right along about that time. He came in the plant walking pretty fast. From his manner and conduct there, he was pretty badly excited and I think he was drinking some from his breath. He had a wound right here on his thigh somewhere; I don't know just how much. There was a little bit of fresh blood on it. He made a statement there to me. He said that he had been knocked down and stabbed right there, and he stopped right there close to the door by me, and I examined him and he pulled down his pants, and there was a little place — fresh blood right along here, somewhere on his thigh. He said they had knocked him down and robbed him." He further testified that the negro said he was afraid to go to the police station by himself and asked him to go with him. The court, in approving the bill, says: "Same was clearly res gestae, the evidence being uncontroverted that the scene of the alleged assault was only about a block from the ice plant where said Majors was working; that said witness Brown ran from the scene of said alleged assault hurriedly to said ice plant, and in an excited, scared condition, related to Majors what had taken place; that he was still scared and excited when said Majors left him, on his way to the police station." Appellant contends that we should not consider this qualification, he contending that there is nothing in the evidence to show that *Page 76 the ice plant was only one block away. Of course, as qualified, the evidence would be admissible, but if we should ignore the qualification the record would show it to be res gestae of the transaction. The assaulted party testified he went direct from the place of the assault to the plant and told Majors, and asked him to go to the police station with him, and Majors' testimony shows that the negro was excited and bleeding from his wound in the thigh. The entire record discloses that it could have been but a few minutes' time from the time of the alleged assault until he appeared at the light plant and had the conversation with Majors, and the court did not err in holding the testimony res gestae of the transaction.
There are no other grounds in the amended motion other than as presented in these four bills of exception, and as they nor either of them present error, the judgment is affirmed.
Affirmed.
[Rehearing denied February 10, 1915. — Reporter.]