*1 492 Wayne
Paul Butler v. State 27,037. 16, No. June 1954 Rehearing 20, Denied October 1954 Appellant’s Rehearing Motion for Second Denied (Without Opinion) 17, Written November Murray Howze, Monahans, appellant. J.
Wesley Attorney, Austin, Dice, for the state. State’s Judge. WOODLEY, years robbery; punishment, in the conviction is for
penitentiary. State, companion
This is a that of R. Fields v. case to Lebron volume). (page No. this injured 56-year-old Mex- party, Julio Orozco eight ican farm laborer whose wife and children resided Chihuahua, em- Mexico, field of his State was alone ployer irrigation canal, Ivey preparing Paul an when up, car and asked and his two him to the drove called gasoline. at replied had he He there was ranch to his work. had none there and returned car, again returned to the and when he called He was three, appellant, than other and one of was raised hood party were still Appellant and the third *2 of the car. car. made opinion case describes the assault in the Fields
The upon the victim. down, knife that while was
Betancu testified got occupant throat, appellant of the car and the other at his holding by hand on was out and had his through occupant pockets, did the other his the hand and went of the car. cigarettes package and of
Betancu further testified that by taken from him assault exhibition Mexican coin were the say dagger, of the he was unable to which of the knife or pockets. parties either item his Many questions same raised in Fields case were disposed there and need not raised on trial. this were further mentioned here. be testify,
Appellant was offered did not but his confession only to admission of The relates the state. tending relating parts show that the confession committed other and rob- assaults day question. beries only portion state, confes- first offered
sion, permitted thereafter to offer whole. omitting warning signatures, confession, clause showing follows, objected col- to as being underlined. lateral offenses years age; Wayne
“My and I am 18 Paul Butler name is Grove, present I consider and at I Okla. was born Cedar Munday, following my Box Texas. home address Pecos Monday, I arrived 1953. “I came to Pecos October 8 P.M. about got supper, called Pecos, I ate after I
“I hitch-hiked to stay Fields. my apt I up Cleborn me a taxi to take got apt. and went to just I left as soon as and I Cleborn — spent night, Verhalen Gin where we Leborn was night morning last and Cleborn went to work this at Seven Leborn, Eugene Embry, A.M. and I came back Pecos. We left Verhalen A.M. about 7 were in the wine colored Ford of Leborn Fields. Pecos, Embry suggested go “When we out and beat — Embry
the hell out of some Mexicans said that he had beat hell out thing money of several and from them. Said some- easy money you get caught. morning don’t This thing was the I first have heard about that. like P.W.B. — “I have worked at Verhalen a month have known the boys years, Fields about 8 Embry or 10 and have known about a month.
“I don’t think any Cleborn has been in on and beating, Embry but and Leborn have in- Gene Pace been beating according volved in robbing forays several to what conversation I have overheard in the last month. morning
“This Embry, Lebrón, between 7:30 A.M. and 8'A.M. picked and I up drove west of Pecos on 80 and a US Mexican years old, about 25 miles, drove on west about turned twice left stopped a got cotton where we car and field Lebrón hit down, the Mexican but did not knock him so I hit him one time and knocked him down. We searched the Mexican boys got and one 50c. We turned the car around and drove highway back to 17 and south Mexican about miles we found a working in the highway. field on the west side of the drove We — out to up where picking he was looked like he was —rocks hood, killed the motor raised Mex- We and as the — looking ican was Embry at the motor told me to Fields Eugene hit him. I ing put hit him one time and he fell down. a hunt- Embry him, knife at the Mex throat and and Fields searched get thing. any we didn’t “Embry used the on all three men. knife “We the second man in the and drove on out left field — highway turned and drove north a mile and a turned left half around and trying drove back south to ivhere Mex was catch a ride about even with the Drivein Show. “The Mex thinking in the car we take him where would — —
he was going Embry suppose something I told him im Mex a, — paved on south to road west. drove get then we — flighting paved Mex started stopped road and the on the stopped going we Embry we were to do. When told him what had Embry out and the Mex had a I in the back seat and looked file file, Embry I don’t tried to hit had a The Mex knife. Embry I the Mex two or three to cut the Mex. hit think tried drove down in the next times in the car and we field Embry I was worked the Mex over while railroad. Fields and Embry dragged driving. Fields to the railroad When They again. and I hit him searched him him out the car get go. trying I them to come on and while was “They they got change small and watch. told me compartment put glove and we came on to the watch in the got back in Pecos about 10 AM. Pecos. We apt. Embry I home and Fields amd went our “We sleep my I Fields went to and went to town to sell car. anything I done
“This is the first time have ever or been ar- rested. discharge Corps
“I from the Marine have medical served four months as volunteer. any subject,
“I more of this and would don’t know if I did. tell *4 lying that truth realize is of no
“I have told the because good.” not appellant’s that he had testified contention since It is relating testimony, portions of the confession no
had offered were inadmissible. other offenses por- words, appellant underlined insists that
In other prejudicial and were inadmissible the confession against tions of crime be tried accused is to rule that one offended evi- alone, that the the state contends whereas that offense for exceptions the rule where the under the admissible dence was gestate, or tends show part of the res crime is extraneous issue, identity or tends an identity intent or is intent or which he is offense for defendant connect the trial. testimony appears if the leaves to be that state’s rule defendant, identity intent or
no as to the exception apply. p. not Branch’s Ann. Sec. 166. does P.C. stated, identify appellant as As victim was unable to coin, cigarettes or and did not taken his his Mexican testify Appellant, that assaulted him. in his confes- sion, him said he struck the Mexican and others searched get anything.” but “didn’t identity
The existence of the in the case was asserted issue by appellant charge exception in his to the and in his motion though trial, complained new of the con- even fession were in evidence.
Paragraph 34 of motion for trial “the new asserts that identity.” evidence raised the issue as to mistaken Also, evidence, appellant even with the entire confession in urged urges trial court and here “there is question from the evidence in this case as whether or not the upon injured party, in- assault was made tent to rob.”
The confession shows that of his one suggested “go ; they hell beat out of some Mexicans” previously money said he had so and had done them.
They victim, appellant’s car and soon found their first got fifty him and their re- assaulted one of number cents as searching sult of him. drove some three miles before lo- cating Betancu, cigarettes after of his locating small Mexican coin drove a short distance before highway, a third victim on the- who was likewise assaulted the trio.
According confession, Embry, passenger the third car, “used the knife on all men.” three *5 pursuance in of Under the facts here the three were assaults conspiracy Mexicans,” a to assault and rob “some none of whom conspirators, part were known to the and each offense formed a conspiracy. of the charge of guilt on the upon appellant’s passing jury, in determining the in of these laborers the second know the facts of acted, was entitled he intent with most, at only hours a few consumed enterprise which
entire assaulted. though victims three different holding confession that the entire if we mistaken But be just stated, how not clear is under the rule it admissible was injured by appellant its admission. was complained of the confession of
If without identity appellant one of the of as of the question no there was upon him and inflicted violence persons who assaulted deadly weapon, and exhibiting dagger, a placed a him in fear him, left no property and if there was his joining robbery of the motive and intent that was penalty that assault, the lowest in the received offense, position to com- in no law affixes for plain. is such to sustain conviction find the evidence sufficient We observe no error. reversible judgment is affirmed.
ON MOTION FOR REHEARING Judge. MORRISON, argument, appellant’s at
In forceful and in able motion aggravated torney that, has because reasserted contention robbery assault is a lesser included offense to the offense charged indictment, and jury was offense count of the one charged might should have find accused been aggravated guilty Appellant v. assault. contends that Stevens State, Rep. 59, 246, supports 138 Texas Cr. 134 S.W. 2d such agree. It view of law. cannot should With this contention we reading said, fact, be noted that “In in the Stevens case we justify the record doubt as to the correctness of would serious course, penetration.” her there was Of there belief penetration, no tempt intent at the offense would be assault with or rape rape. Applying rather the test than offense bar, say in ing that a read case the case at can Stevens justify correct would doubt as to the record testimony as ness of Betancu’s that he had robbed well been assaulted? think not.
498
Appellant’s rehearing motion for is overruled.
Lebron R. Fields v. State 27,008. 2, No. June Rehearing Denied October Appellant’s Rehearing Second Motion for Denied (Without Opinion) Written November Howze, by Murray Howze, Monahans, Howze <fe J. appel- lant.
Wesley Dice, Attorney, Austin, State’s for the state. MORRISON, Judge. robbery by deadly weapon;
The offense is the exhibition of punishment, years. five party injured testified that the field brought appellant when and his the automobile in riding nearby, to a halt in the road gasoline appellant first asked him for and then asked him if he automobiles, anything knew could re- that before he ply testified struck him his fist. He that he ground fell to result these blows and