199 S.W. 487 | Tex. Crim. App. | 1917
Lead Opinion
Appellant's conviction was for robbery, and his punishment assessed at confinement in the penitentiary for five years.
The sufficiency of the evidence is not challenged, nor the charge of the court criticised. A bill of exceptions calls in question the correctness of the court's ruling with reference to escape and flight by the appellant. Appellant, while testifying as a witness, was asked by State's counsel if he had not broken jail and run away. The bill shows that objection was made on the ground that the escape and flight inquired about related to an occasion when appellant was in jail charged with robbing a person different from the one named in the indictment. These objections constitute a mere statement of the ground of objection and fail to incorporate sufficient evidence to verify their truth. The facts on which the objection rests should be verified. Smith v. State, 4 Texas Crim. App., 630; Mims v. State,
Flight, concealment, escape and evasion of arrest when relevant are admissible. 12 Cyc., 395; Hardin v. State, 4 Texas Crim. App., 355; Holt v. State, 39 Tex.Crim. Rep.; Branch's Ann. P.C., 78, sec. 135, and cases cited; Wigmore on Ev., secs. 276 and 281. The relevancy of such evidence depends upon its relation to the particular offense or offenses involved in the trial, and it is not admissible to prove flight or escape as a circumstance reflecting upon the accused when it relates to an entirely different and disconnected charge of offense. Damron v. State,
The facts of this case as certified by the trial judge would seem to bring it within the same rule. The court says: "The State did not at that time file a complaint against him for robbery of all of the parties who claimed to have been robbed upon these two occasions and only a few minutes apart, but the grand jury at the succeeding term of the court indicted him in all of these cases, and while it is true that there was no charge pending against him for the robbery of Watson Wade at the time he escaped from jail, yet they were practically one and the same transaction." Similar facts were involved in People v. Kent, decided by the Supreme Court of Michigan, 81 N.W. Rep., 1097, in a case where one was in jail convicted of a misdemeanor and while not charged with a robbery was aware such a charge might be filed against him, it was held that his escape from jail was admissible on his subsequent prosecution for robbery.
Our conclusion is that as presented the record discloses no error, and the judgment of the lower court is, therefore, affirmed.
Affirmed. *257
Addendum
Appellant in his motion assails the sufficiency of the evidence on the ground that the witnesses who identified appellant as one of the party participating in the robbery were unreliable. Several witnesses testified that a party of four men committed the robbery on several persons; that they used firearms, and had their faces partly covered with a cloth or handkerchief in the way of disguise. Appellant was identified by positive testimony as one of the party, and as taking part in the robbery of the party named in the indictment. There is no question as to the sufficiency of the evidence if the jury believed it to be true, and it was their province, and not that of this court, to pass upon the credibility of the witnesses and the weight to be given their testimony.
The motion is overruled. Overruled.