281 S.W. 1076 | Tex. Crim. App. | 1926
The offense is robbery; punishment fixed at confinement in the penitentiary for a period of five years.
According to the evidence of the state, the appellant and one Cantrell, between nine and ten o'clock at night, entered the store of J. C. Graham, and, using a firearm, put Graham, his wife, and one Martin, who were in the store, in fear of death and took from the store a sum of money. The appellant and Cantrell were identified by the testimony of each of the persons who were present at the time of the robbery. Appellant, through his testimony and some other witnesses, presented the defensive theory of alibi, claiming that he and Cantrell were riding in a rented car and were at various places during the night, their movements being inconsistent with their presence at the time *619 and place of the robbery. Evidence of persons other than the injured party and his companions was introduced by the State combating the theory of alibi.
Upon the issues of fact, the jury was instructed in a charge, the sufficiency of which is not assailed.
The state's attorney, during his argument, picked up a hat which, according to the bill, was described by witnesses on the trial. Holding the hat in his hand, the attorney remarked: "Can any one say that Cantrell did not have such a hat on his head?" Exception was reserved upon the ground that the statement was not supported by the evidence; that the hat had not been introduced in evidence. The bill of exception, however, fails to show that the hat was not in fact introduced in evidence. The court having overruled the objection to the argument, it will, in the absence of an affirmative showing to the contrary in the bill of exceptions, be presumed upon appeal that the facts justified the court's action. The bill must be sufficient to show error. Ard v. State, 276 S.W. Rep. 263; Coluson v. State, 277 S.W. Rep. 135; Carter v. State, 277 S.W. Rep. 395. A recital in the bill of exceptions of the objections made is not equivalent to a statement that the thing complained of did occur. Quinney v. State, 86 Tex.Crim. Rep.; Gonzales v. State, 226 S.W. Rep. 455.
During the cross-examination of the appellant he was asked if it was not a fact that the witness Knottley had, on Harwood Street, jumped on the running-board of the automobile in which the appellant and Cantrell were riding and that appellant had "stuck" a gun in the face of Knottley and ordered him to get off the car upon the penalty of death. It appears from the bill that objection was urged upon various grounds which was overruled and the appellant required to answer the question, but the bill fails to show what reply or answer was made. To determine that in receiving the answer there was error, it will be necessary for this court to know what answer was made. See Cannon v. State, 278 S.W. Rep. 853, and authorities cited. The bill, moreover, fails to show that the inquiry was not a proper one. Both in the bill and statement of facts it appears that appellant went into details showing his whereabouts from eight o'clock, when he claims to have rented the automobile, and one o'clock, when the automobile was returned to the owner from which it had been hired. His whereabouts during the intervening time was a proper subject of inquiry, and the matter mentioned may have been, and apparently was, relevant to refute the evidence of alibi. *620
While Knottley, a witness for the State, was testifying he was asked:
"Just what was this fellow and his partner doing at your car?"
Various objections were interposed and overruled, and State's counsel said to the witness:
"All right, Knottley, were they standing quietly by your car or were they in action?"
The witness replied:
"They were in action."
The bill fails to furnish sufficient information touching the antecedent or surrounding facts to enable us to determine its merits. The presumption is in favor of the correctness of the ruling of the court. Cavanar v. State, 269 S.W. Rep. 1053, and cases there cited.
The bill complaining of an inquiry made of the appellant whether he had previously been in trouble fails to show error in that the objection to the question was sustained and no answer was received.
The bills complaining that appellant, while testifying, was asked his occupation and where his parents resided, fail to show that any answers were made and disclose no error.
The judgment is affirmed.
Affirmed.
