277 S.W. 1095 | Tex. Crim. App. | 1925
Lead Opinion
The appellant was convicted in the District Court of Potter County for the offense of robbery, and his punishment assessed at six years confinement in the penitentiary.
The alleged injured party identified the appellant as the party who at the point of a pistol held him up and robbed him of his money and certain checks which he had in his possession.
Appellant made no affirmative defense unless it can be said that a very weak and partial alibi would constitute such.
By bill of exception No. 1, complaint is made at the argument of the district attorney, the effect of which was that the appellant knows where he was at the time the offense was committed and the question was asked why he did not bring some witnesses to show where he was at that time. The bill of exception *233
urged fails to show the status of the defendant's testimony at that time and utterly fails to negative the idea that there were witnesses that could account for appellant's presence at the time the offense was committed. In the absence of a showing that the statute which prohibits reference to defendant's failure to testify has been violated, we have no other course but to assume that the argument was legitimate and proper. The court also qualified the bill, saying that it was not shown nor suggested anywhere in the record that appellant was alone at the time referred to by the district attorney. The bill was accepted with this explanation and in this condition of the record it shows no error. Boone v. State,
Bill of exception No. 2, complains at the court's action in giving two similar charges on the question of principals. The objection to these charges is that one is practically a copy of the other and that in repeating these charges it places undue emphasis upon the State's theory. We are hardly prepared to say that the charges are copies of each other; in fact, we think there is a rather clear distinction between the two charges and are not prepared to say that the giving of each of them was error.
In bill of exception number three, complaint is made at the court's action in permitting the witness Cain to correct his testimony given earlier in the trial. The record with reference to this matter displays a rather awkard and unnecessary situation but we think the objections urged to it are not tenable. It is proper and permissible for the court to permit a witness to correct a false statement that he has made at any reasonable time during the trial. We do not commend the practice of the trial court holding private conversations with a witness and receiving private information from him during the time the court was in recess, but as above stated, we think the bill of exceptions taken as a whole fails to show that any error was committed which was prejudicial to the defendant.
The above and foregoing disposes of each of the questions raised contrary to appellant's contention and, finding no error in the record, it is our opinion that the same should be in all things 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. *234
Addendum
In an elaborate brief and forceful oral argument by attorneys who have come into the case since its affirmance, it is insisted that a reversal of the judgment should have been accorded by reason of the violation of the article of the statute forbidding the comment upon the failure of the accused to testify. An examination of the bill upon the subject reveals the fact that the district attorney, referring to the defendant, said:
"He knows where he was before he went to his room. Why don't he bring witnesses here to prove it? He knows where he was; why did he not bring some witnesses to show where he was?"
In qualifying the bill, the court used the following language:
"It was not shown nor suggested anywhere in the evidence that he was alone at time referred to by the district attorney."
It occurs to us that the bill fails to show error. The facts are analogous to the case of Gallegos v. State,
The motion is overruled.
Overruled.