*1
V.A.C.C.P.,
38.14,
applicable
deem
is
provides:
“The rule which we
Article
State,
Cawley
Tex.Cr.R.
v.
upon
be
the
cannot
“A conviction
37,
complaining Welch not witness at established scene and alleged
the commission the offense but with into related came the store Jr., MANKIN, Appellant, Victor Birch Square together man another either approximately time, at the same then drew him to the counter (Webb) Texas, Appеllee. STATE of purchase gum; chewing No. 42382. gun in Square left stuck a ribs. Appeals Texas. of Criminal Court 21, 1970. Jan. presence While evidence mere Rehearing 1970. March On sufficient, is not alone has been held many times that the evidence of “[w]here
the accomplice witness makes out com
plete defendant, against case the ac
complice sufficiently corroborated proof
other that a showing crime was com present
mitted and the defendant was
with accomplice very time Ann.P.C.,
such commission.” Branch’s ed.,
2nd Sec.
In Bird v. Tex.Cr.App., S.W.
2d this court said: *2 you.” as soon to kill to look
Appellant, who was next Hogue, “Yeah, going said are to kill you. get money together.” You *3 complainant they Hudson told them Donald, Forbis, Bowie, Paul Sewell & money, got money could sack have the Decatur, appellant. for regis- money and took out both cash put money ters and and “a bunch of London, Atty., Marvin, County Mon- F. those at the album that we sell records Vollers, Atty. tague, State’s and D. Jim store,” brought they which had Austin, for the State. counter, record rack to in the for sack them.
OPINION required go in Hudson was then to back and to lie floor on room down WOODLEY, Presiding Judge. put his stomach and his hands him. behind firearms; robbery with offense is wrapped His hands and with ad- feet were years.- punishment, tape tape put and across his hesive mouth the head and he was beaten about not plea of on a jury before Trial was seriously injured. and death not seek the did guilty. The state defendant, of the Upon election penalty. he He lick testified after the first punishment. jury assessed anything days did not remember for ten and he regained when he consciousness set error are grounds of Eight Falls, hospital was in a where Wichita brief, which one of appellant’s forth he nearly remained three weeks. He was evi 7) (Ground No. then hospital returned to the Bowie convic to sustain dеnce insufficient nearly where he remained four weeks. tion. on morning About o’clock after the Hudson reflects that The record James Missouri, robbery, Joplin, officers Grocery Handy night operator stopped appellant’s 1957 Chevrolеt Sedan P. Bowie, County. About Montague being by appellant, in Ronnie driven which Ron- night December M. on the Hogue occupants. was one the store. appellant entered Hogue and nie car. stopped the Bob Clifton Officer on which by the rack After over Bowlby his vehicle di- Officer Paul was in talking displayed were record albums stop rectly when the behind Officer Clifton themselves, to the came among was made. waiting on cus- counter where Hudson bat- a transistor he wanted tomers and said hе testified that Bowlby Officer asked him Hudson tery for his radio. and clear hearing all times within distance have he would and said what size occupants vision of Officer Clifton and see, he went out- and go car and car; he Officer Clifton saw re- store and into thе side. He came back and up walk to the left front of the car Ronnie where rack turned to record driving. talk to who was was, talk- “they went back to Bowlby appellant get Clifton out and had ing.” registration talking “the heard them about car, title, li- talk- to the and the driver’s had been Hudson the customers As door, Hud- all cense.” He further testified that later out the front ing going to were army placed of the of the were an car “jabbed in the back” son was got of the under arrest and them out Ronnie who “We in the hand of pistol stick-up, they and we would car arrest. were under “This is a said: you “Q. distance Do how much They all arrested in reference to know had been had, when he beverages there was between them they the alcoholic shot him? (Ronnie Hogue) went wild being arrested.” Honor, “MR. Your SEWELL: this, all objection go will our
“Q. Did take him under arrest? irrelevant and immaterial Well, “A. he was under arrest. We this defendant? car, get them out Yes, “THE preparing an initial search COURT: sir. for, well, person weapons “Q. About much hоw distance was incidental to the arrest because we there between Officer Clifton and going up to load them were *4 Hogue at time of this shoot- in take them to the Police Head- ing? quarters. “A. There was a It just few inches. “Q. pictured in did the What man right just point-blank, or 1, the State’s Exhibit man other close. what, any- defendant; than the if thing, you you “Q. did do when at- you were Where the time of this tempted physical to take control of shooting ?
him? probably “A. I was back five or six Well, up, “A. lined them or Officer feet. up Clifton lined them to search “Q. do, Then what did any- if
them. thing ? “Q. up did Where he them ? line Well, Hogue me, “A. turned on I Well, signboard “A. there was a him. shot
kind of a bill-board that was close “Q. occupants What were the other there, to the street and he car in doing the meantimе? place them their hands on safety bill-board for in sake Well, they “A. were searching persons, and the the right, probably six or seven man who passenger here a feet, looking.” front, the right he to be continued Appellant positively identified and beh'gerent, up-set about matter. Hogue by photographs identified as “MR. SEWELL: You know the robbers and as driver occu- name, man’s you? don’t pants appellant’s stopped automobile morning next in Joplin, Missouri. “A. His Hogue. name Mr. Mr. Hogue wristwatch wearing which Hоgue gave quite a trou- us bit of death, was taken from his wrist ble, and as preparing he was belonging was identified as to the com- him, search pulled gun on plainant robbery. and taken from him in the the— A of appellant’s search made automobile “Q. kind of a gun What was it? after Officer Clifton was shot and killed “A. automatic. Hogue, money revealed scattered over the floor and record albums such as were do, “Q. anything? Then what did he if complain- in the money sack Well, ant. The total “A. he throwed amount the stomach Officer, Clifton, possession and in other pellant’s approached
shot car him. the total amount death and to al- missing registers after the ble for Officer the cash Clifton’s robbery. to the of Officer lude death Clifton. ground find no merit in this of er- find to sus- We the evidence sufficient
We princi- tain ror. the conviction of
pal robbery. in the complains of error No. Ground charge failing to complains that the court erred in
Ground error No. “principals” on admitting jury the converse court the testi that the erred killing principals on Bоwlby making charge and in to the mony of Officer repetitive prejudice to the Clifton, unduly the facts Joplin, Mis of Police appellant’s rights. day after the souri, by Ronnie robbery. objections do in appellant’s We not find charge any to the to the failure ar- reference flight and
Evidence of resistance charge law on the converse robbery res the co-actors in the rest of Missouri, principals do merit in this we find gestae in Joplin, of the arrest —nor error. was admissible. Johnson Appеllant Ground of error No. pistol with a knew that was armed *5 change failing that the court erred in Had gave warning no officer. and the of venue the case. so, killing both he done the of Hogue could co-principal Clifton and his The of change mоtion for venue was Had succeeded have been avoided. only by his at- supported the affidavit of Joplin in of Police Offi- slaying both torney. cers, flight would of the two robbers record, of Under the find no abuse not have ended when it did. change discrеtion in failure the court’s complains of No. 2 that Ground error the venue. admitting, appel- in court erred of objection, lant’s the fruits of search complains 6 Ground of error No. automobile, appellant and his which evi- of permitting the that еrred in court dence should have been excluded because Conway to remain in state’s witness produced illegal an search. trial, appellant during the after courtroom
had invoked the rule. ap The that neither record refleсts Conway assigned to deputy a sheriff was pellant nor automobile was searched prisoner. guard the and Clifton was until after Officer shot killed, and all of the the car the matter Appellant concedes that under arrest. been rule excusing dеputy sheriff discretionary judge. the trial with was Appellant was was searched no find abuse of such discretion. We mortally and other officers had wounded arrived, some am- and some and person. on
munition were found remaining of error The is is entitled (Grоund 8)No. admitting trial in court did not err of the fact that to new trial reason a a result the evidence obtained as punishment the hearing on state searches. con of a permitted to introduce evidence viction for violation Act, Marijuana Sec. Ground of error Tax 26 U.S.C. No. youth a permitted 4744(a) for the in Court as (2), court counsel Federal argue responsi- offender. state charging of theft, form of and that opinion upon is had
Reliance larceny States, robbery, charging fensе or Leary United Supreme Court in 57, theft, taken is description property a of the 6, 1532, L.Ed.2d S.Ct. U.S. uniformly applied. 1969, case essential has been Wil May 19, since this handed down 391, State, son v. 356 S.W. was tried. 928; State, 110 Tex.Cr.R. 2d Holland v. part a proved The conviction 384, 10 561, cases and cited. plea on a pellant’s criminal record was guilty. November judgment dated is The indictment which found offender, appellant youth ad- a descrip appeal contains no record imposi- judged guilty suspended him corporeаl personal property tion al of the years. tion five of sentence for robbery. leged to have been taken States, Leary supra, In v. United the Su- supra, directly Wilson v. is preme timely concluded a Court point supports appellant’s contention proper privilege against assertion fundamentally that the indictment herein is com- provide self-incrimination should a defective and the conviction thereon can- plete defense to under 26 U.S.C. prosecution not stand. 4744(a) Sec. held (2), petition- that the Appellant’s rehearing motion for is invoking er’s (Leary’s) privilege granted, aside, affirmance is set proper provided and that should have judgment re- reversed and the cause full defense and accordingly Leary’s con- manded. viction under said Article reversed. bar,
In the case at the conviction was
upon plea guilty privilege and the
not asserted. The evidence of such convic-
tion was admitted without objection. of error is overruled. judgment is affirmed. vir, Marian Vise Stanton WINETROUB et Appellants, ON APPELLANT’S MOTION FOR REHEARING STANTON, Appellee. Harold R. No. 14823.
WOODLEY, Presiding Judge. Appeals Texas, Court of Civil In his amended motion rehearing ap- for San Antonio. pellant, time, the first asserts as Feb. ground for reversal the indictment against him, rendered upon which - convicted, is fundamentally defective
that nowhere description therein is there a property “corporeal taken other than
personal property.”
While the sufficiency rule as to
an indictment to advise the accused with
reasonable certainty of the accusation he is
called upon to ap meet trial not
plied in later decisions of this court as
strictly as it was, once the common law
rule that robbery is aggravated but an