*1 util- were two sales that search thereof after he had made the cause, as the beer concealed ized in the trial of this as well under found of a search had been as the result automobile probable cause. writing we think for further herein since
We see no reason original pre- opinion properly disposes questions our sented. rehearing
The motion is overruled. for Thomas v. Schwartz State. No. 25,458. 14, November 1951. Rehearing January 30, Denied 1952. for Petition Writ of Certiorari Granted 9, 1952. June
Judgment Affirmed by Supreme Court United States 15, 1952, December Filed in Court of Criminal Appeals January 1953. *2 Braecklein, Dallas, and 0. Hughes, T. F. Mowroe W. Maury appellant. for Bailey, Attorney, Assistant First Wade, Gene Henry District Roaj Potts, L. Fagan, and S. Attorney, John Charles J. District Dallas, George P. Black- Attorney, and
Stokes, District Assistants Austin, Attorney, state. for the burn, State’s Judge. MORRISON, being accomplice the crime an to that of
The offense is ninety-nine years. punishment, robbery; Bennett, escapees from an Ohio and one both Jarrett One February days 1950. On before Dallas few jail, came to shown, be hereinafter day, preparations which will after that they gained city, ad- in that home of Dr. to the Shortal went firearms, up and waited tied the servants by the use mittance point return, pistol did at return. When she Mrs. for Shortal’s rings and then locked her diamond to surrender she was forced residence, leaving Jarrett and the Shortal After in a closet. appellant pawnshop and left the dia- went to the Bennett money, rings They amount of received a small with him. mond expected appel- jewelry, comparison and to the value of compensate jewelry them further. Of dispose and lant to controversy. to have been no facts there seems these appellant, and Bennett both testified Jarrett At trial having above, and, told of en- in addition to the the state for appellant conspiracy commit a series of with to into a tered having whom robberies, arms and information as to received having appellant, and of in accordance with this from to rob conspiracy performed and carried to him proceeds disposal and for a division of the fruits thereof the among them. the three of conspiracy re-
Appellant denied the and claimed that he purchaser for ceived the diamonds as innocent value. presented ap- questions attempt to discuss the shall pellant in the order advanced. appellant’s claim that there first directed to
Our attention is accomplice testimony of the two is no evidence than the other being accomplice him with witnesses which tends to connect offense, to the and that their is commission sufficiently corroborated. purchasing pistol from
Jarrett told of returning pawnshop day the next it would not it because Jarrett, you occasion, appellant “If fire. remarked On this might good partner with, you to work be able to make a Thereupon, appellant; score.” Bennett Jarrett introduced might any spoils they three them worked out a division of contemplated, acquire wherein virtue robberies party robbed, was to furnish the name of the *3 robbery bring Bennett were to commit the and the fruits thereof appellant disposal. equal proceeds for An division of the agreed upon. juncture, appellant assistant, boy
At this sent his a colored Davis, up gun being named third floor to the new test furnished Jarrett and which was later used in the Shortal rob- bery. further, Davis and, testified in corroboration to this fact following appellant robbery, at the instance of the Shortal fifty person he delivered dollars to Jarrett in and a second sent fifty dollars under a fictitious name to Houston. This was shown by to have been received Bennett. Davis further testified that pawnshop he saw Jarrett company and Bennett in the with appellant prior robbery. on another occasion to the Shortal morning
Jarrett robbery, testified that on the and in preparation therefor, appellant presence in the of and Jarrett Bennett called the Shortal Clinic to ascertain whether Dr. Shor- tal had they left home. This was done so that would en- they counter Dr. when went to rob home. his Graham, Clinic, receptionist Miss Kate at Dr. Shortal’s telephone call, corroborated Jarrett as to such a as will seen Exception our discussion of Bill of 4.No. above, telling In portions addition to the we find two evi- tending appellant’s dence to show connection with the fruits of robbery after the same had been committed. following testified that The witness Graham some anonymous telephone she received an call at the Clinic making inquiry missing as to a reward for the Im- diamonds. mediately thereafter, suggestion police, at the she called appellant place positively at his and business identified his being inquiry. voice as the one that made the reward DeWitt, further find We witness adjuster surreptitious insurance inquiry from whom the made concerning the reward for the return of the Shortal following delivery diamonds their to him for by disposal Jarrett and Bennett. telephone feel the recorded conversations between
Jarrett and Excep- hereinafter Bill discussed under tion 1No. corroborate Jarrett’s Bennett’s version disprove appellant’s transaction and defense. playing No. before
jury of such records of conversations Jar- between the witness appellant. rett and the These records were in the sheriff’s made suggestion attorney purpose office at the of the district for securing against appellant. pris- evidence Jarrett was then a cooperated oner and with the officers in out state’s telephone, case. The medium of their communication was the being appellant being Jarrett in the sheriff’s office and pawnshop.
Illustrative ques- thereof is answer made Schwartz to concerning securing tions lawyer the services of a guns how much police information the *4 had about the used “* ** in said, you when he in sit boat and we get along will drowning people better. There’s no use of ten when one can drown help and one can the other.” Appellant objections leveled evidence, nine to the of we which urged will discuss those in his brief. sought
Appellant to invoke the terms of Section 605 of 47, Annotated; Telegraphs, Telephones Title U. S. Code Radiotelegraphs, commonly referred to as the Federal Com- Act, by claiming munications he that did not consent evidence, recordings or to their introduction in opinions arising cites us in several cases in Federal Courts. holding Without this evidence to have been in vio- obtained question rather 605, to the address ourselves lation of Section in procedural a trial statute to applicability a Federal of a state court. 727a, statute, 1929, now Article Code Vernon’s
Prior read, Procedure, of Criminal person in viola- an officer or other obtained evidence
“No any or of the State provisions of the Constitution laws tion of America, Texas, States shall be admitted or of United of of against any trial of criminal accused on the in evidence case.” reads,
It now person in viola- other obtained officer or “No evidence any provisions of the Constitution or laws of State tion of America, Texas, United States or the Constitution against trial of the accused on the shall any admitted evidence case.” criminal State, 1930, Montalbano v. 116 Tex. Cr. R.
In we said in (2d) 1100: 34 S. W. “* ** longer P., 727a, amended so as to no Article C. C. was require rejection of evidence obtained in violation laws ob- There is no claim that the evidence was States. United law of this tained violation State.” obtained in violation of or was not the State This evidence Texas here ad- or the statutes of Federal Constitution against objection. missible complains phonographic
Appellant next that the records were secondary himself was evidence and the source of appears are cited no authorities. It to us the best evidence. We complaint well taken. is not No. witness Graham having testify anonymous permitted to as to received telephone call. accomplice in corroboration of the
This Jar- rett, had, prior receipt evidence, who of the Graham testi- *5 present fied when called tele- that he her on the conversation, phone and of told details the which she cor- these roborated : morning day in the of call was made the the of
1. That the robbery. was made to Dr. Shortal’s Clinic.
2. That it person calling inquired the about 3. That whereabouts alleged of an automobile accident of Dr. told be- that of car and the caller. Mrs. tween Shortal’s give telephone of caller number. refusal 4. The possessed conclude that trial court was this we From to cause him to believe that two facts witnesses sufficient talking about the same conversation and that the witness were corroborating Though the witness Jarrett. not con- Graham certainly persuasive clusive, fact spoke truth. Secundum, Corpus page 984,
In 22 Juris Section following: find the
“Telephone Conversations weight completeness goes
“The identification to the evidence, admissibility. not to its Whether evidence of telephone conversation is admissible rests in the discretion of the trial court.
“It said has been the rule does not define one method or way telephone admissible; conversation and there rule, requires every is no evidence which witness a identify it, participants conversation shall himself iden- being Although tification others considered sufficient. it has ordinarily recognize been said that the witness must the declar- voice, imperatively ant’s has been it it held that is not necessary person talking recognized the voice the other party requisite identity may to the conversation. The be estab- ---by person listening lished a third to such conversation.” complains separate No. 6 of two and dis- rulings tinct of the Court: Permitting 1. testify witness Bennett about certain
pistol appellant. which he received from grant 2. The failure appellant’s requested court to charge concerning testimony. such framed, So bill matters, of two is therefore *6 nothing presents for review. and multifarious Exception Appellant, in No. seeks to raise a his Bill of agreed by question that, proving upon the method of division among thieves, proved another extraneous and sub- the state crime; wit, conspiracy a do stantive to commit crime. We to objections question. not think the made the time raised the However, go holding say pre- further and that would such a involving clude the state from out its case an accom- plice doing bar, as in case at because in so another offense would have been shown. Jarrett, recounting general working agree-
The witness in prior any ment made between the thieves to discussion of the asked, you any “At did that make agreement you any between Bennett Schwartz —make properties as the distribution of taken in rob- agreements bery?” was, “Yes, His answer we did. After we discussed the points got fine splitting up any any down to on loot robberies, along said, go go of the he ‘You with andme I will along you fellows, with split (l/3rd) and we will one-third on all robberies —.” question raised,
When the of the Shortal was later unnecessary arrangement it was separate for them to have spoils thereof, understanding for the division because this already recounting been reached. An accurate of the facts particular type proof made necessary. this The jury bill does not reflect that heard further mention of plural extraneous offenses other than that “rob- used, beries” was appears as shown above. It to us that the care- judge ful agreement proof respect. trial limited the state’s in The though into, crimes, entered it embraced other legitimate proof.
We do not feel that the bill reflects error. Exception
Bill No. 3 that was not permitted Fink, recount conversation had with one he who witness, fully was not offered in order to more make ex- planation possession property. of his recent of stolen The court’s qualification conclusively agreement appellant’s shows with concerning disposition fully Fink diamonds had of the been portions testimony covered in other of the witness. nothing hearsay material excluded find actually admitted evidence. covered deprived No. 2 contends that opportunity prove assistant tested all firearms shooting sale, them out of the window before a or “lease” in terminology pawnshop, was An exami- consummated. *7 such nation actually of facts shows that evidence was of the statement permitted when he adduced from same witness the gun going try “My up testify, purpose to the there was to right; it shoot all we do that whenever out to see if would shows no error. them.” Hence the bill ‘lease’ Finding error, judgment the trial court no reversible affirmed. is
ON MOTION FOR REHEARING. Judge. Presiding
GRAVES, asking lengthy Appellant briefs in this filed two court has rehearing cause, a of this all of herein and for reversal for a argument original brief and are but reiteration of his which newly point exception which of one claimed discovered with the hearing in matter. in the first offered was not original opinion expressed our as in the adhere to views We proposition attempt briefly write on the new and will to herein raised, appellant, who as follows: It is claimed is which facts, charged accomplice under the herein to as charged principal an accom- as rather than have should been plice. facts, here, presented opinioin to are as of the extent, relative appellant’s contention would bear out
a certain principalship except seem to to his lacking cogent for the fact there (1) follows: principalship, as elements of a robbery presence the scene of actual of the accused on offense, per- (2) the actual of the commission of the conspiracy appellant such formance of an act relative to Herein, robbery. is it such at the time of the commission of watch, kept did present, or that he not shown that or he commission act time of its in furtherance of the at the it, question principal see so as to make him a As we therein. presence is not to constructive case. agrees of an person the commission
“Any who advises or present same is committed is is offense and who when (Italics illegal sup- principal he aid not in the act.” whether or plied.)
Article 70 the Penal reads as follows: Code accomplice present “An commission is one who is not at the advises, offense, who, done, of an commands but before the act is encourages offense; or or another commit
í ^ prepares any kind, prior com- “Who arms or aid the principal assisting offense, purpose mission for the (Italics in the supplied.) execution of the same.” case, Under the facts of this we find at the time busily engaged place commission of the offense in his daily usually stayed. Appellant business and avocation where he doing seems absolutely nothing to have been in furtherance *8 offense, thereof the time of the commisison and was surprised by rapidity with which the two thieves had exe- cuted that previously which he had commanded encour- aged them to do in the commission of such offense. charge alleged The appellant, though here is that present at offense, prior the commission of the advised, encouraged thereto commanded and commit others to proof it. The charge, that, established the and also established agreement, accordance conspiracy with the re- ceived the fruits of the dispo- and had control crime over their sition, except co-conspirators that the were to share in the fruits disposition sale after the property; of the stolen and the cited State, case of Johnson v. 151 Tex. Cr. R. 206 S.W. (2d) 605, holds that in such event the accused was an accom- plice rather principal. than a Believing correctly charged proven accomplice,
as an rehearing motion for a will overruled.