Conviction for robbery; punishment five years in the penitentiary.
This is a companion case to Cause No. 14489, Jim Everett v. State, opinion handed down March 30, 1932, and Cause No. 15001, Batcheler v. State, now pending before this court. The facts from the state's standpoint are in the main very much like those in the case of Everett v. State, referred to. We see no need for a recital of the facts testified to by the state witnesses further than to say that same show that on the night of January 28, 1931, this appellant and one Jim Everett came upon a party of men and commanded them to "Stick 'em up." The testimony shows that one of the men had and exhibited a pistol. The parties so ordered held up their hands, and while in this position they were searched by a man implicated in the supposed holdup, who afterwards turned state's evidence and testified for the state, who got from one of the men a small amount of money and from the other one a larger sum.
Appellant has brought forward twenty-two bills of exception, each of which has been examined in the light of the able brief and citation of numerous authorities by appellant's attorneys. Reviewing the complaints made as presented and argued in appellant's brief, the first matter discussed is the supposed error of the charge, as raised by exceptions thereto which seem unintelligible, but refers to the failure of the court to tell the jury that, if appellant was present by invitation of the officer, etc. We have examined carefully this first exception, and find nothing tangible in it.
The second exception to the charge was for its failure to instruct the jury that, if appellant was present at the robbery, and money was taken from McGowan by Stacey Childress "without his knowledge and consent he would not be guilty as charged in the indictment." We have tried to bring ourselves to understand this exception without success. We cannot tell whether the phrase "without his knowledge and consent" applies to appellant Cadle or witness McGowan. However, we are of opinion that, if it referred to appellant Cadle, the exception would be unavailing because covered by the main charge which told the jury that they could not convict appellant unless they found and believed from the evidence beyond a reasonable doubt that he agreed to the commission of the offense committed by Childress (the party making the search). We find nothing supporting the theory that appellant was holding the pistol on the parties for the purpose of letting Childress search them for *Page 598 guns, and nothing else. The evidence seems to plainly show that pursuant to an agreement entered into between appellant and others to hold up said parties, appellant and Everett held them up, and Childress went through their clothes and got a small amount of money from one of the men, and $95 in money from another. Appellant took the stand as a witness in his own behalf, and admitted being at the place in question for the purpose, as he claimed, of helping others detect and catch parties bringing liquor down the road, but he emphatically denied that he and Everett held anybody up, or that Childress went through their clothes and took anything from them in his presence, or by his agreement or connivance. In this connection appellant argues the error of the refusal of his special charges. We see no necessity for discussing same at any length. There was no issue made as to the legal right of an officer to deputize a citizen to assist him in making an arrest of parties for violations of the law. In another one of said special charges appellant sought to have the jury told that he could not introduce in his behalf certain parties who were jointly indicted with him for complicity in this offense. This was correctly refused as decided in O'Neal v. State,109 Tex. Crim. 486, 5 S.W.2d 521. Nor do we see any necessity for giving special charge No. 1, which was in substance that, if the jury believed that this appellant, acting with his codefendants, did not intend to take from Rose, McGowan and Adams money or things of value, at the time and place mentioned, and that they caused Childress to search the said parties for guns only, and that Childress, unknown to them, took from McGowan money without the knowledge of appellant, they should acquit. Appellant has gone to great pains in collating the authorities and making an extended argument in support of the giving of said special charge, but we confess our inability to see the application of the authorities or correctness of the argument. Childress testified that he had stopped the parties who were robbed, on the road, and that Everett and appellant came up, appellant having a pistol and Everett a flashlight, and that they made the parties hold their hands up, and that he (Childress) went through their pockets and got money off of McGowan and gave it to Batcheler. On cross-examination he said that he was not certain whether Everett and appellant knew that he got any money out of McGowan's pocket, but affirmed that they knew that he got 55 cents out of Rose's pocket, and later dropped it back in his pocket and told him that he was a cheap s__ of a b____, or something like that. We fail to find where he said that there was *Page 599 any understanding or belief on the part of appellant that he was only searching the parties for guns.
Appellant's second and third propositions relate to statements of the prosecuting attorney, made in the presence of the jury as reflected by bills of exception Nos. 9, 12 and 13. We regard the statements made by the prosecuting attorney as uncalled for and unnecessary, and as being of a character that ought to be avoided, but same put before the jury no new evidence, nor do we believe them capable of influencing or affecting the jury's consideration of the question of the guilt of the accused. The jury rendered a verdict giving appellant the lowest penalty. In bill of exception No. 9 it is set up that, while appellant's attorneys were cross-examining a state witness about some conversation between said witness and another party about a still that the other party had been running for witness, the state's attorney said in the presence and hearing of the jury: "That is all a bunch of bosh," and later again said "It is all bosh and slush," and again while appellants attorney's were taking their bills, the state's attorney said "Take thirty bills." 'The matter being inquired about was apparently very remote, to the question of the robbery. Bill of exception No. 12 shows that during the cross-examination of the same witness he was shown a check relating to the purchase of some whisky, involving an illegal transaction apparently, not shedding light on the question of the robbery, and the state's attorney objected, saying to the court: "We are not trying him for this check, and they are trying to get all of this slush and slime before the jury, and that is not fair?' From bill of exception No. 13 it appears that while the same witness was being cross-examined, he was shown a check, and state's attorney said in the presence and hearing of the jury: "Yes, and I have got some of your clients signatures in my office." It would seem unnecessary to admonish prosecuting attorneys not to indulge in conduct of the kind evidenced by these bills of exception. In some cases same might require reversal, but in the instant case, and in view of the fact that the lowest penalty was given, and that the matter under discussion, and about which the remarks were made, appears of so little materiality, we would not think the case should be reversed for the making of such statements.
Appellant complains of proof by the state of the acts and declarations of his alleged coconspirator Childress done and said after the alleged robbery. While Childress was on the witness stand, he was vigorously cross-examined by appellant's attorneys, and admitted that he had made various and sundry *Page 600 statements at other times and places contradictory of those made by him while on the witness stand. The declarations testified to as being made by said witness after the termination of the conspiracy were declarations in consonance with and supporting those made by him on his direct examination as a witness in behalf of the state. Many authorities will be found cited in sections 181, 182 of Mr. Branch's Annotated P. C., supporting the proposition that, where a state witness is attempted to be impeached by showing that he has made statements out of court different from and contradictory to his testimony given on the trial, proof may be admitted showing that he had made other statements similar to those given while on the witness stand. As illustrating what we have said, we find in the cross-examination of state witness Childress that he was asked about a statement made to the county attorney the morning after the holdup, and if he did not tell the county attorney that there was no hijacking out there at all. A little later he was asked if he did not make certain statements to the officers and if he was not under oath when he made the statements to the officers, and if it was not a fact he did not tell the whole truth when he made the statements. He was further asked if he did not testify certain things on the habeas corpus trial of this appellant under oath, and if he did not make certain statements which were read to him which were entirely at variance with statements made while on the witness stand. This furnished a predicate for the admission of testimony as to the statements of the witness which were in consonance with the statements made by him as testified to by witness introduced by the state. It is also complained that, the state having drawn out of appellant while on the witness stand admissions that he had been indicted for other offenses, it was the duty of the court to instruct the jury they could not consider such testimony for other than impeachment purposes. We find no special charge in the record requesting such instruction, and the only thing in the exceptions taken to the charge of the court is that it is stated: "Defendant specially excepts to said charge because same nowhere explained to the jury the purposes for which the impeaching testimony is offered." In this connection the court gave special charge No. 2 which instructed the jury that the impeaching testimony was admitted as to the witnesses Rose, McGowan, Adams, and Noble for the sole and only purpose of aiding them in passing on the credibility of said witnesses and for no other purpose. The exception quoted is so indefinite as to not call the attention of the trial judge to what testimony it *Page 601 referred. We can not tell from an inspection of the exception to what testimony reference was had. The testimony apparently referred to as obtained from appellant was the fact that he had been indicted for other offenses which consisted, as far as we understand the record, only of his admission that he had been charged with transporting a still over in Freestone county, but there is no showing when this took place, or whether the charge was in the federal court, or whether it was a felony or otherwise. Appellant further testified that no complaint or indictment had been filed against him recently. With reference to the matter over in Freestone county, appellant testified on redirect examination that he paid a fine for having a pistol in his car, and that was about all there was to it.
We think it not necessary to enter into any extended discussion of the right of the court to direct the order of trial as between appellant and his codefendant Batcheler. Appellant filed an application for severance, and Batcheler made a counter affidavit refusing to agree to be tried first, and the court correctly directed that appellant go to trial. It is admitted in this connection that Batcheler has since been tried and convicted.
Complaint of the rejection of testimony sought to be elicited from the state witness Stacey Childress on cross-examination by appellant, if he was not engaged in the business of bootlegging, seems within the rule laid down that a witness can not be impeached by proof of particular transactions. There was no effort made to show that these matters had ever been made the subject of an indictment or arrest for any purpose.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.