No. 573. | Tex. Crim. App. | Apr 6, 1895
The appellant was convicted in the District Court of Bell County under an indictment charging him with robbery, and his punishment assessed at seven years in the penitentiary, and from the judgment and sentence he prosecutes this appeal.
Several bills of exceptions were reserved, but all that are necessary to be considered involve the question as to the admissibility of the testimony of Mike Glenn. The court permitted the State to prove, over the objections of the defendant, that on the night of the alleged robbery, and a little while before it is said to have occurred, he saw defendant and his brother, A.A. Gallagher, with Frank O'Briant, the *305 prosecutor, in his saloon, at Temple, and that they left there together; and after the arrest of the two Gallaghers, he went to the calaboose and recognized them as the same parties who, with O'Briant, left his saloon together on the night of the alleged robbery. He assigned as a reason why he noticed them, that at the time there were some negroes in the saloon, who had bought a can of beer, and after it was poured out they got to squabbling about it, and while engaged in the squabble, defendant picked up the can and drank some of the negroes' beer without asking their consent. The defendant objected to this latter portion of the testimony, because, as he alleged, it was evidence of theft of the beer, and not connected with the alleged robbery, and was calculated to prejudice the defendant before the jury. The court, in explaining the bill of exceptions, states that the drinking of the beer was a trivial circumstance, not involving theft, and was only used by the witness as the circumstance that called his attention to the parties, and enabled him to identify them afterwards. To our minds, this testimony in regard to the beer did not show that the defendant was guilty of theft of the same, and, while strictly not admissible as evidence, yet, in view of the testimony in this case, it could not have prejudiced the defendant or have affected the result. The proof that the prosecutor had been robbed was complete, and the defendant was identified as one of the parties engaged in the robbery, and he himself admits that he was present at the time in the back yard of the saloon, and saw A.A. Gallagher and the "Little Dutchman" rob O'Briant; that they took his money and pistol away from him, and ran out of the doorway to the back yard of the fence, and that he followed them, and saw them divide the "stuff." This conduct of the defendant was certainly strange, if he was an innocent man, as he claimed to be. Moreover, the proof shows that prior to the robbery he had no money, but when arrested, shortly after the robbery, there was found on his person $1.50 in silver and a $5 gold piece, which corresponded with the money which had been taken from the prosecutor. In the whole record there is no evidence contravening the State's case, except the testimony of the defendant. That itself, while not a confession of guilt, is in its nature corroborative of the State's case.
The judgment is affirmed.
Affirmed.
HURT, Presiding Judge, absent. *306