26 Tex. Ct. App. 105 | Tex. App. | 1888
This is a conviction for robbery. It appears from the record that the court adjourned on the eleventh day of June, 1888. The motion for new trial was overruled on June 8, and the statement of facts was not filed until June 30, 1888, nineteen days after, adjournment.
The appellant seeks the aid of the act of March 8, 1887, and asks this court to consider the statement of facts although not filed within the time prescribed by law, nor within the ten days allowed by order of the court.
Counsel for appellant by his affidavit shows in substance that
To be entitled to the provisions of the act of March 8, 1887, it must be shown that due diligence has been used to secure the approval of the trial judge to the statement, and the filing of the same within the period prescribed; and that the failure to do these acts was not the fault of the party or his counsel, but was the result of causes beyond his control. (George v. The State, 25 Texas Ct. App., 229; Spencer v. The State, 25 Texas Ct. App., 585.)
Such diligence does not appear in this case, and hence we-can not consider the statement of facts found in the record.
Counsel for defendant objected to certain evidence offered by the State and admitted by the court, tending to show that another person acted with defendant in the commission of the offense charged in the indictment, and in this court the counsel contends that, as defendant is charged under the first clause of article 722 of the Penal Code, as amended (General Laws, 1883, page 81), evidence that another acted together with defendant is inadmissible.
The statute reads: “Article 722. If any person by assauft 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
If a party is alone charged with the commission of an offense, proof that another or others acted with him may or may not ■be admissible, this depending upon the rule of evidence. Such proof is never held inadmissible upon the ground that they were not jointly indicted. Also, if the indictment charges but one with the commission of an offense, and the penalty for .such offense be greater when committed by more than one acting together, still, proof that more than one acting together ■committed the offense is competent, if relevant, etc., but in the last state of case the court must instruct the jury that they can only assess the lesser penalty.
How, by reference to article 722, it will be seen that whether the robbery be effected by “assault,” “violence,” by “putting in fear of life or bodily injury,” or whether the offense be committed by one or by several persons acting together, or whether fire arms or deadly weapons are used or exhibited, the penalty is the same. This being the case we hold that there was no reason requiring the court to call the attention of the jury to the penalty annexed to a robbery committed by an assault, violence, or putting in fear, because, if effected by any method named in the statute, the penalty is the same.
Under the facts of this case, proof that another acted with •the accused was clearly admissible. Indeed, it would be a very remarkable state of case in which such proof would not be admissible.
Defendant objected to the introduction of State’s witness 0. J. Landers, said witness being placed on the stand after the ■close of testimony by both the State and the defense had been announced, and whose evidence was to corroborate a statement ■of State’s witness Strickland. Ho part of said witness’s testimony was in rebuttal of any statement of defendant’s witnesses.
“The court shall allow testimony to be introduced at anytime before the argument of a case is concluded, if it appears that it
"We find no error in this judgment, and it is affirmed.
Affirmed.