Solsona v. State

KRUEGER, Judge.

The offense is robbery by assault. The punishment assessed is confinement in the State penitentiary for a term of thirty years.

It appears from the record that on the night of July 2, 1939, the appellant and Salvador de la Cerda got into the automobile of Jesus Perez while parked on Santa Rosa Street in the City of San Antonio. Cerda got under the wheel and drove the car away while appellant and Perez occupied the rear seat. After they had gotten some distance, they struck Perez, threw him out of the car and drove away with it. They were pursued by the officers soon after the offense was committed. Cerda was apprehended that night while they were in the act of taking the wheels off the car - and the appellant was arrested sometime later.

Salvador de la Cerda testified that he knew Fred Solsona, the defendant; that he had known him about twelve years; that he met Solsona about 11:30 or 12:00 o’clock on the night of July 2nd. He further testified as follows: “When we approached this car it was parked on Santa Rosa Street close to Buena Vista Street, * * * I don’t know who was in the car when we came up to it. * * * When we started the car Fred said ‘Let’s go.’ Fred started the car and I drove it. * * * At that time I did not have any weapon with me, nor did Fred have anything that I saw. Fred got in on the right-hand side and told me to drive off and I did so; and then the fellow in the back began tangling with Fred. I mean they were fighting, and Fred told me to keep on driving. Fred was cursing him and this other fellow was telling Fred to let him go, and then we drove up to somewhere and Jesus jumped off. * * * When he jumped off we took the car away from him. * * * When this fellow jumped out of the car we drove to the creek. * * * Fred told me to help him strip the car. * * * While we were stripping the car the officers came up, and when they did so we ran. I ran towards the creek and had gone about fifty feet when I heard shooting and I surrendered. * * * I do not know where Fred was at that time, and did not see him until on the second day after this happened. This man, Fred Solsona, was the man I was with when this occurred.”

Jesus Perez, the owner of the car, testified that he knew the defendant and saw him.on the 2nd day of July, 1939. It was about 1:30 A. M., when appellant stood beside Perez’s car on Santa Rosa Street. From the testimony of Perez we quote: “He came up to me with a knife. * * * This defendant was on the left side of the car, and the other fellow was on the right-hand side. * * * He told me to get out of the car, and I was going to get back in the car when they hit me in the back of the neck. I got in between the two seats and one of them jumped in and put a knife in my stomach and told me not to move. * * * At that time I was in the car, and they kept on beating me in the back and in the face. * * * Just one was beating me in the back of the car. The first cut I received was on the wrist, and I was also cut on the right side. * * * When we stopped I was scuffling with one of them. These two men took a quarter from me, and I also lost my car. * * * I do not know what they did with it but they found it with the tires off * * *. They left me unconscious on some street, but I don’t know the name of it. * * * I went to a house after I regained consciousness and telephoned for the law to come and pick me up. * * * They brought me to the hospital and I stayed there from Sunday until Monday afternoon. * * * I did not give these two men, or either of them, nor anyone else permission to take this property.”

Officers testified to having received information of the alleged robbery. They drove down to the creek and saw two men stripping a car. When they threw the lights on them the men ran. The officers recognized appellant as one of the men who ran from the car. They pursued them and arrested Salvador de la Cerda, but the appellant got away. Appellant was arrested the next morning while asleep.

Appellant testified in his. own behalf. He denied having seen Salvador de la Cerda on the night in question. He denied that he had robbed Jesus Perez of the car. He also denied having anything to do with the robbery.

The mother of the appellant testified that her son, - Fred Solsona, came home about eight o’clock on the night in question and did not leave any more; that her' son went to bed in the back yard about eight o’clock; that he did not go to bed with his clothes on.

The above constitutes in substance the entire testimony adduced upon the trial. We think the evidence is sufficient to justify the conclusion of the appellant’s guilt.

Appellant contends that his punishment is excessive. We are not prepared to say that it is. The punishment assessed is within the limits prescribed by law for the offense for which appellant was convicted. If the State’s testimony is to be believed, it was rather an aggravated case. If the defendant’s testimony is to be believed, he should have been acquitted. However, the question of his guilt was submitted to the jury who are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.

Appellant brings forward a bystanders’ bill of exception in which he complains of the alleged testimony given by Mr. Higdon, a deputy constable, who testified: “When we drove over the little hill and our lights picked up the car that they were stripping down in the creek bed where all car strippers go to strip cars, one ran to the right and one ran to the left and the defendant here, Fred Solsona, is the one that ran to the right; I knew it was him from the way he ran; I knew it was him because I have arrested him numerous times for the same thing; he is nothing but a thief and a high-jacker.”

This bill of exception is entirely insufficient because part of the testimony was admissible, at least that part of it up to the point where the witness says, “I know it was him from the way he ran.” The other part of the testimony given by the witness, “I have arrested him numerous times for the same thing, he is nothing but a thief and a high-jacker,” would have been subject to an objection, but the rule has been well established in this State that where a person makes a blanket objection to the admission of the testimony, part of which is admissible and part of which is not, the objection should be directed specifically to that part which is not admissible. In support of what we have said here, we refer to the cases hereinafter cited and also quote from Tex. Jur. Vol. 4, p. 305, sec. 212, as follows: “A bill of exception complaining of the admission of evidence must point out the particular evidence objected to. A bill containing a general objection to testimony, a part of which is admissible, is insufficient to manifest error if it does not single out the inadmissible portion of the testimony.”

See also Ferguson v. State, 133 Tex. Cr. R. 250; Stanfield v. State, 134 Tex. Cr. R. 197; White v. State, 20 S. W. (2d) 196; Leahy v. State, 13 S. W. (2d) 874.

No reversible error appearing in the record, the judgment of the trial court is affirmed.

The foregoing' opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.