Barber v. State

ON MOTION FOR REHEARING.

MORRISON, Judge.

Appellant’s able attorney has urged that we differentiate the case at bar from the holding in several prior cases of robbery wherein we held the facts to be insufficient to support a conviction. In view of the forceful manner in which he urges his motion for rehearing, we shall attempt to do so.

In Peebles v. State, 138 Tex. Cr. R. 53, 134 S. W. 2d 298, the alleged robbery occurred on a crowded street corner in broad daylight, where the slightest outcry would, in all probability, have brought assistance. In that case, there was no weapon exhibited; in fact, the record did not show that either party was armed.

In the case at bar, the parties were on an isolated country road, where an outcry would have been futile. In this case, a knife was actually exhibited. The injured party testified that one of appellant’s co-indictees held a knife between the front seat and the back seat of the automobile in which the witness was seated and that, when the witness stated that he had no money for the robber, the robber “started up like that (indicating) .” This robber was still in the immediate vicinity in company with his associates when the appellant secured five dollars *567from the prosecuting witness. The witness had every reason to assume that appellant could secure the assistance of his companions had the witness resisted and that they were acting in unison in the matter.

In Easley v. State, 82 Tex. Cr. R. 238, 199 S. W. 476, there were only two persons present; the stick in the hand of the accused was never brandished, and the prosecuting witness did not report the incident until after another case had been filed against the accused.

In the case at bar, the prosecuting witness reported immediately that he had been robbed and the knife was “brandished.”

In Gillard v. State, 128 Tex. Cr. R. 518, 82 S. W. 2d 678, the accused was not present when the robbery occurred and was not shown to have received any of the fruits thereof.

In the case at bar, the appellant personally took five dollars from the injured party.

In James v. State, 144 Tex. Cr. R. 126, 161 S. W. 2d 285, the prosecuting witness was not able to identify the accused. The participants in the robbery met seemingly by accident, which we considered was evidence that there was no preconceived plan to commit the offense. In the James case, there was a strong dissent by a present member of this court, and this is not to be considered as a reaffirmance thereof.

In the case at bar, there was positive identification of the appellant and the other parties involved; the four men were all together in the automobile when they picked up the injured party, and the evidence does not exclude a mutual agreement to commit the offense.

So much for the sufficiency of the evidence.

Appellant again insists that he and his co-indictees were not charged with the same offense and that, therefore, they were competent witnesses in his behalf. Each was charged with the robbery of John Hager; what they secured from him is not controlling. If one was charged with robbing Hager of a watch and the other charged with robbing him of the money in his pocket at the same time, it would still be the same offense.

*568Appellant again urges that the rule in White v. State, 149 Tex. Cr. R. 419, 195 S. W. 2d 141, calls for a reversal of this conviction. We are not inclined to extend the rule in the White case, and if we reversed this conviction, we would be doing so. In that case, it is clear that the defendant was absent from the courtroom. In the case at bar, the defendant was seated with his family three or four rows back in the spectators’ section of the courtroom.

Remaining convinced that we properly disposed of this case originally, the appellant’s motion for rehearing is overruled.