*1 486 Appellant is behalf. discuss the s last contention
in his own
shall
We
argu-
in admitting
in
the court erred
the fruit of the
contentions advanced
brief and
by
appellant’s
Though
search of
automobile.
ment.
repeated objections were made to
search,
question
contends
concerning
first
each item in
quash
in
the second
failing
court erred
objec
was admitted
without
evidence
him on
paragraph
against
tion, hence,
presented
of
indictment
question
no
is
grounds that the
therein set
Boykin
State,
review.
v.
172 Tex.Cr.R.
(larceny
person
State,
from
652,
328;
forth
v.
362 S.W.2d
Watson
Michi
of
533;
committed in
State
274,
been
172 Tex.Cr.R.
and
355 S.W.2d
not an
like character
gan)
286,
offense of
Killingsworth
State,
v.
165 Tex.Cr.R.
robbery
charged in
by
assault
offense of
Robbery by theft are assault and Dickey v. of the same nature.
offenses 165,
State, 322, 162 Tex.Cr.R. 336 S.W.2d 258, Tex.Cr.R. Thompson v. in properly 209. The State S.W.2d Code of of the
troduced Section 28.589 Michi State of Procedure of the Criminal GRAVES, Appellant, Janies Edward 750.357, Mich.1948, show gan Comp.Laws § v. person larceny is Texas, Appellee. The STATE of felony in that state. We hold larceny) from the No. 36595. (or law theft matter of nature as same person an offense of the is Court Criminal of Texas. appellant’s robbery by assault and overrule April 8, 1964. first contention. Rehearing June Denied 1964. court erred next that the He asserts Rehearing Motion Second Denied copy sen admitting evidence a Oet. 1964. prison records tence, and the commitment appellant’s fingerprints from containing Michigan. Each document
State of Supervisor of Records certified Michigan. prison of Southern
the State’s Judge of the Circuit Court Jackson County, prison and its Michigan, where the located, the iden as to
records are certified Records, and the Supervisor
tity the Circuit
clerk Court Jackson the iden County, Michigan, as to certified to be in Judge. we deem
tity of the This Article compliance with the terms
strict merit find
3731a V.A.R.C.S. We sentence contention that the attested
commitment should have convicting court.
the clerk of the *2 deceased, Phillips, and his Selmon
wife, operating on October motel Phillips 1962. While Mrs. seated at telephone switchboard behind the coun- ter, nearby, and the deceased seated appeared appellant at the door of p. office m. When deceased inside, entered, asked appellant him counter, paper upon pulled threw a sack pistol, Phillips give and told Mrs. every thing got him you’ve “damn under appellant there.” The then said “you s—o—b—, get behind deceased: d— deceased, the counter.” As the who was crippled, comply, tried to pistol, him with his struck de- demanded billfold, ceased’s and when he reached for it, shot him or five four times from a distance two or three feet. Aft- shot, er the first struck deceased club, lant knocking with a his hat and off glasses, which were left the scene at motel, fled po- from the lice were notified. Phillips
Mrs. testified that she identified police at the station as the man who shot her husband at the motel. She also testified on cross-examination as follows :
“Q. you Did chance oc- say
casion to anything to him or say did he you at the police station? Yes,
“A. sir. “Q. you say something Did to him? “A. picked No sir. He came in
me out. Navarro, Jr., Peter King Haynie S. C. “Q. How’s that? A. He came in (on appeal only), Bailey, Jr., Houston, S. J. and told me he did it and he was appellant. sorry it. Briscoe, Atty., Frank Dist. E. Carl F. “Q. that all you? Is A. No told Dally and Hughes, N. Asst. Dist. Jon sir. Attys., Houston, and Douglas, Leon B. “Q. you? else What did he tell Atty., Austin, State’s for the “A. He said he never had BELCHER, Commissioner. good in his life and never would murder; pun- is for be and his conscience wouldn’t ishment, death. him live let wit/wt.” * * *
"Q. involuntarily written statement was made as a matter of law. “A. He said its a life for a life and *3 get he would chair he the but appellant The as called his witnesses my conscience said wouldn’t let aunt, person a with reared me live with it.” him, prisoners, six fellow psychiatrist, a parole juvenile a and officer. Their testi- living directly A resident behind the mo- mony portrayed a acts series of and conduct tel, question, about the time in his heard when he beginning a child was and contin- dog barking loudly, observed automo- uing case, the date of to the trial in this in- parked motel, bile behind of the office the cluding five commitments to the reform hearing after three shots saw car and a Gatesville, school in two to the hos- state speeding from the scene. The evidence pital, penitentiary. and one to the The spots that were further shows there blood witnesses described the commission nu- of from the front door the the motel to appellant merous brutal acts mem- on place parked where the car was behind family, bers of his and stated that he had signs the motel and also that the car had burglary committed theft and and had up suddenly. started penitentiary been released from the about two months before the instant offense was a The evidence reveals that hair found committed; they and him further described inside the hat the hat found on band of as being unstable and The abnormal. the the motel soon after the floor of psychiatrist ap- he compared spec- stated that considered with known shooting, when pellant mentally dangerous, sick and but no appel- imens head of the of hair the expressed lant, opinion was they witness the that he completely iden- shows that were tical, insane. having each the same characteristics. psychiatrist, In rebuttal the called a state appellant apprehended The on No- officers, psychologist, probation IS, shooting and following the
vember
expressed
opinion
they each
and
the
that
he
deceased on October
and
thereafter
appellant
sane.
signed,
made
he
a written statement which
robbing
and in
he
the
which
admitted
motel
ap-
argument,
In
brief and
the
oral
a .22
shooting the deceased with
caliber
and
pellant strenuously insists that
officers,
pistol.
accompanying the
While
grant
in refusing
court erred
to
his amend-
appellant pointed
place
the
them
out to
the
ed
In
motion for
trial.
the motion
new
bayou
in a
where
thrown
.22
he had
the
alleged
jurors
he
that
were
the
informed
he
pistol,
it was recovered as
caliber
and
public
the
through
media that
directed,
spent
five
and it contained
shells.
planning
escape,
the
the
to
that
life of
attorney
threatened,
that
district
had been
did
his own
not
they ap-
jury,
guards
in their
extra
were needed and
the
but
absence
behalf before
peared
voluntarily
beside
the court room
he
he
make
testified that
did not
upon
statement;
light after an electri-
restoration
that
statement
written
He
cal failure.
that
he did
re-
further
certain facts which
not
included
state,
officers,
argument,
closing
in its
referred
he
late
did
lose
prior
juvenile
record and
convictions
glasses
hat
at the motel
shown
and
incapable
appellant,
he was
and that
On cross-examination
statement.
rehabilitation;
jury
commented
jury
signing
admitted
he
absence
testify,
appellant’s
did not
statement;
on
failure to
and he testified that
dur-
charge
court’s
read
consider the
pistol he used at the
officers recovered the
deliberations;
since
bayou by following the direc-
their
in the
motel
testimony
he had
new
trial
gave
tions
them. After this
support
which would
his defense
insan-
motion that
overruled
court
what
lawyers
anyone
any
else
fense
ity.
failure to attach affidavits
room,
will fur-
jury
and we
in the
a went on
jurors
the motion is accounted
they
to talk
all refused
stipulate that
ther
unwillingness to make af-
their
showing of
they
ask-
were
when
to Defense Counsel
fidavits.
ed.”
support
In
stipulations,
Notwithstanding the
ju-
following five
called as witnesses the
investigator Bible testified
lant’s
Kennard:
rors and Bruce Hamilton
Ju-
Anderson,
Williams,
and Fisher
rors
he was
testified that after
Wilson
Juror
him.
with
willing
discuss the case
jury
juror, but before the
as a
selected
*4
thing
completed:
only
“This
the
any
all
the
or
The refusal of
Attorney had
I
District
did hear. That the
they had been
jury,
the
after
members of
;
this trial”
been threatened because of
appellant’s attor
talk with
discharged, to
recall
made such
that he did not
no stat
neys
investigators violated
his
statement,
heard or
and that he had not
author
ute,
not
does
and under the record
his
anything
the
before
read
about
case
appellant contends.
as the
ize a reversal
voir dire examination.
136,
277 S.
162 Tex.Cr.R.
Farrar v.
854,
denied, 350 U.S.
W.2d
certiorari
never
Williams testified that he
Juror
him if he would court erred in holding. not so crazy was not or insane. When Ken- While we remain convinced of the nard him he had been life told assessed a opinion soundness of original our in this sentence but the sentence had not been present cause and that contention of pronounced, Kennard if he was asked properly disposed of there state, would if deal some in, we do feel that due gravity to the out; could be and that worked punishment imposed thorough a more nothing knew about this un- conversation cell, position proper. discussion of our will be til he returned to his r The record hearing on Hart, investigator Virgil for the j his motion for new trial reflects that wit- attorney’s office, trict testified that at the questioned by ness Kennard had been request attorney of assistant district Ernst Attorney’s someone from the District Of- jail during he talked with Kennard fice, prior to the main trial of this cause. trial, thought and Kennard him that he told During questioning this it was elicited crazy, and that he re- opinion from Kennard that he was of the *5 ported this Hart information to Ernst. “crazy.” Kennard was further testified that he never discussed ^ not called during to said main trial. with Kennard his sentence. appears It newly It is contended that this amounted ato suppression evidence was available to ap- covered deliberate of evidence of pellant’s by lant Kennard had insanity as both counsel jail upon Ashley been in the same for some time be- Reliance is had v. 5 trial, Cir., during fore and the time of the F.2d in contending. 319 so such evidence could have been ascertained canWe find no merit in this assertion. by main trial before the conclusion of the diligence. the exercise of reasonable Six Ashley, supra, In the evidence the Unit- persons pris- who were or had fellow ed States Court of for the Fifth testified as oners Circuit should have been dis- to. concluded physical The tes- and mental condition. closed was that of two doctors had who Kennard, shown, timony as Ashley examined request at likely if change such as would the result state, and concluded he insane produced on another trial. prosecuting informed the officer of this fact. of all the evidence From a consideration motion, support it is con- in offered opinion Judge In the Ashley Tuttle cit- court did not abuse cluded Thompson Dye, ed United ex States rel. v. refusing grant a new discretion to Cir., following F.2d wherein the trial. is found: support is sufficient evidence many “It seems likely that situations (cid:127) appearing, and' no error prosecutor will arise in which a can judgment is affirmed. fairly keep knowledge to himself his approved the Court. Opinion testimony of available which he views as mistaken or false. But there are Rehearing Appellant’s Motion for On prose- other circumstances which a McDonald, judge. must, certainly cutor or should know rehearing in his honestly motion for that even which he again the trial court erred type contends disbelieves is of a from a grant new trial failing based on probability source which in all would newly evidence elicited very persuasive from fair mind- make it to a notably testi- jury. This is true of ed officer, cer- police and most mony of a officer, favorable
tainly arresting anof person.” of the accused a contention bar, persons six who
In the case at prisoners of
or had been fellow condition, and
testified as to mental testimony of showing that the
there is no
Kennard, prisoner, would also a fellow that so any degree from
have varied easily dis- The instant case is
elicited. Ashley, supra, in Ash-
tinguished as
ley, suppressed that of evidence was appointed the State medical doctors case in the
to examine accused while bar, an un- the evidence was that of
at sub- testified
trained felon would have prison- stantially six as had other fellow Houston, Pomeroy, Jr., Paul J. appellant. testi- ers of Thus Kennard’s appellant. “ * * * in all was not such mony Briscoe, probability Atty., be a fair Dist. F. persuasive would Frank Carl E. Dally, Atty., Houston, jury.” Asst. and Leon minded Dist. Austin, Douglas, Atty., B. State’s for the *6 Appellant’s rehearing is over- ruled. WOODLEY, Presiding Judge. appeal is an order entered in
This
corpus proceeding
a habeas
denying bail
robbery
case.
appeal
fixing
A former
from an order
$100,000
moot,
bond at
dismissed
parte
Ex
Samuel SPIVEY.
having
the indictment
been dismissed and a
No. 37159.
new indictment
parte Spivey,
returned. Ex
Tex.Cr.App.,
Oct. 1964. is It now shown that has immunity; granted the indictment
missed cus- released from tody. question moot, of bail our being
original opinion granting bail in the sum of $10,000 appeal is withdrawn and the dismissed.