The offense is murder; the punishment, death.
The trial was had in Grimes County on a change of venue from Walker County.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Major Crowson by shooting him with a pistol.
The uncontroverted testimony of witnesses for the State was, in substance, as follows: James Mullins, Raymond Hamilton and appellant, all of whom were convicts, had been sent to Eastham State farm. Mullins was discharged on the 10th of January, 1934, but prior thereto had agreed to aid Hamilton and others in an effort to escape. Upon being discharged, *Page 296 Mullins went to Dallas, where he procured several automatic pistols, some shotguns and Browning high-powered rifles, which he, Clyde Barrow, Bonnie Parker and Floyd Hamilton, brother of Raymond, carried to Eastham farm in Barrow's V-8 Ford coupe. After Mullins had hidden two .45 automatic pistols at a point where they would be available to Raymond Hamilton and appellant, he and his companions drove to Corsicana, where Floyd Hamilton left them. They then returned to Eastham farm and remained in its vicinity until the date of the homicide. In the meantime Floyd Hamilton visited his brother Raymond and told him where the pistols had been hidden. About 7 a. m., January 16, 1934, Mullins, Clyde Barrow and Bonnie Parker parked their V-8 Ford coupe at the edge of the woods near Eastham farm and waited for appellant and Raymond Hamilton to come to work. On the date last mentioned Hamilton, who belonged to squad No. 2, came to work with squad No. 1, to which appellant belonged. Upon observing that Hamilton was out of his place, Olin Bozeman, the guard of squad No. 1, asked deceased to report the matter to the captain in order that Hamilton might be returned to his proper squad. At this juncture, without provocation, appellant mortally wounded deceased by shooting him in the abdomen with a .45 automatic pistol. Bozeman was also wounded, but survived. After the shooting, and while covered by an automatic rifle barrage fired by Mullins and Clyde Barrow, appellant, Raymond Hamilton and two other convicts ran to Barrow's car and entered it. Driving at a rapid rate of speed, they left the scene of the homicide.
Deceased was carried to a hospital in Huntsville where he died January 27, 1934. We quote his dying declaration as follows:
"My name is Major J. Crowson. I am called at the Eastham State Prison Farm `Long Arm Man' or `Backfield Man,' and on the morning of January 16, 1934, Olin Bozeman was carrying No. 1 squad. I was riding a horse and I was in front of Bozeman's squad. It was about 7:15 a. m. when Bozeman called me and said `Raymond Hamilton has jumped in my squad,' and I said `Boy that is for something,' and Bozeman said `Yes it is.' Joe Palmer (appellant) was in Boss Bozeman's squad and he pulled an automatic pistol. It was a .44 or .45, and Joe Palmer shot me in the stomach. After Joe Palmer shot me in the stomach he shot at me once while I was riding away. When Joe Palmer pulled his gun on me Joe Palmer said `Don't you boys try to do anything.' I never did get my hand on my *Page 297 gun, and I never did shoot at Joe Palmer or any other convicts that was in the squad. After I was shot I rode to the camp and told Captain Mozingo that I was shot and shot bad. I am positive that it was Joe Palmer who shot me."
Appellant did not testify in his own behalf, and, as already stated, no witness gave testimony controverting the fact that appellant, without provocation, fired the shot that killed deceased.
In addition to charging appellant with the offense of murder, the indictment embraced averments as follows: "And the grand jurors aforesaid, do further present that prior to the commission of the aforesaid offense by the said Joe Palmer, to-wit, on the 20th day of May, A.D., 1929, in the district court of Limestone County Texas, the said Joe Palmer was duly and legally convicted in said last named court of an offense to which the penalty of death was and is affixed as an alternate punishment, to-wit, the offense of robbery, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction and said conviction was a final conviction."
Article 64, P.C., reads as follows: "A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary."
Appellant made a motion to quash that part of the indictment charging a prior conviction on the ground that it was not averred that said offense was perpetrated by either the use of firearms or a deadly weapon. Article 1408, P.C., defines robbery as follows: "If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years."
It is observed that robbery may be committed (1) by assault, (2) by violence, and (3) by putting in fear of life or bodily injury. Branch's Annotated Penal Code, sec. 2398; Pendy v. State,31 S.W. 647; Robinson v. State, 149 S.W. 186. When a firearm or other deadly weapon is used the punishment provided is death or confinement in the penitentiary for any term *Page 298 of years not less than five, and when such fact is alleged and proven the crime of robbery becomes capital. Otherwise, it is not a capital felony. Gonzales v. State, 226 S.W. 405. The allegation in the present indictment that the prior conviction was for robbery, an offense to which the alternate penalty of death is affixed, in our opinion is equivalent to an allegation that the robbery was perpetrated by the use of firearms or other deadly weapons. We say this in view of the fact that the alternate punishment of death is only provided in case of the use of the firearms or other deadly weapons.
In Meredith v. State, 184 S.W. 204, it is shown that Meredith was charged with embezzling funds of the Aetna Life Insurance Company of Hartford, Connecticut. There was no averment that said company was a corporation. The indictment charged that Meredith "was an insurance agent and solicitor, to-wit, an agent and solicitor for the Aetna Life Insurance Company of Hartford, Connecticut, which was then and there a life insurance company lawfully doing business in the State of Texas, and of which J.N. Houston was the manager for the State of Texas." In reaching the conclusion that the failure to allege that the company was a corporation did not vitiate the indictment, this court used language as follows:
"Under all the decisions of this court, it seems to be the settled rule that it was necessary to allege that the Aetna Life Insurance Company, as it was the company alleged to be defrauded, was a corporation, unless the statutes of this State give us judicial knowledge that it was an incorporated company. The insistence of the State is that the general statutes of this State do give this and all other courts judicial knowledge that only an incorporated company can legally do a life insurance business in this State, and when the indictment alleged that appellant was `an agent for the Aetna Life Insurance Company, which was then and there a life insurance company lawfully doing business in the State of Texas,' it was equivalent to an allegation that it was an incorporated company, for no company other than an incorporated company could lawfully do a life. insurance business in this State; and chapter 108 of the Acts of the Thirty-First Legislature (Sess. Acts, p. 192) seems to support such contention. We are therefore of the opinion the court did not err in refusing to quash the indictment, nor in refusing to sustain the motion in arrest of judgment. The act in question is a general law, and this court and all courts must take judicial cognizance of its provisions. Article 463 (now' article 411) of the Code of Criminal Procedure (1895), provides *Page 299 that `matters of which judicial notice is taken need not be stated in an indictment.' For a citation of authorities, see section 373, White's Ann. Code of Criminal Procedure."
It is not necessary to allege the prior conviction with the same particularity as if the party was charged originally with the commission of such an offense. 31 Corpus Juris, 735; 12 Tex. Jur., 796; Neece v. State, 137 S.W. 919. We quote from 12 Tex. Jur., page 795, as follows: "This averment is necessary in order to give the accused notice that a greater penalty is to be sought than for a first offense, and to enable him to take issue thereon, and if possible show there is a mistake in identity, or that there was no final former conviction, or the like."
In support of the text, Neece v. State, supra, and Williams v. State, 5 S.W.2d 514, are cited. In short, the rule is that, in alleging the former conviction, the court in which the conviction was obtained, the time of the conviction and the nature of the offense should be set forth. Morman v. State,75 S.W.2d 886. Manifestly a presumptively innocent man could not fail to understand from the indictment in the present case that he was charged with having been convicted of the offense of robbery by firearms or other deadly weapons at a stated time in the district court of Limestone County. He would not be left in doubt as to where to find the record in order to make preparation for trial. Appellant was identified as the person who was convicted in Limestone County on the date alleged in the indictment of the offense of robbery by firearms, and the record showing such conviction was introduced in evidence.
The judgment is affirmed.
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.
ON MOTION FOR REHEARING.