Thompson v. StateThompson v. State
Thе appellant in this case was convicted of" robbery, and his punishment assessed at sixteen years in the penitentiary, and he prosecutes this appeal. Appellant claimed a severance in this case, and asked that Crain, his codefendant, be placed first upon trial. It was shown that Crain was too sick at thе time to be tried, and appellant then asked to continue the case. This was refused. It is evident that the effect of the severance would have been tо eontinue the-case as to both defendants. This, we understand, is not authorized by the statutes granting defendants a right to sever. Furthermore, the record shows that Crain died, and appellant could never have the benefit of his testimony. The indictment in this case is in one count. It charges that $1282.22 was taken by means of the robbery from C. M. Adams, and further сharges that the defendant took one hundred other dollars from said C. M. Adams. The transactions were not incongruous, and there is no duplicity in the indictment. Appellant аlso questions-the validity of the indictment on the ground that there is no allegation that the appellant carried away the property, insisting that the allegation mеrely that he ‘ ‘fraudulently took from the possession of the said Adams” is not sufficient. Substantially the same language is used in our statute-defining robbery as is used in the statute defining theft, on the question of the taking, and it has been held in cases of theft that it need not be-alleged that the property was carried away. See, Willson’s Crim. Stat., § 1260; Walker v. State, 3 Tex. Crim. App., 70; Connor v. State, 6 Tex. Crim. App., 455. The indictment in this respect was sufficient. It is-also objected that the indictment is defective in that it does not sufficiently describe the рroperty alleged to have been taken. The language used in the indictment is as follows: “Twelve hundred and eighty-two dollars and twenty-two cents in money, of the value оf twelve hundred and eighty-two dollars and twenty-two cents; and one hundred dollars-in money, of the value of one hundred dollars.” The term “money,” with reference to theft and еmbezzlement, has been defined by our statutes. See Code Crim. Proc., Art. 428i, and Block v. State,
Appellant offered to prove that, a few days before the robbery the witness, Sam Kindred, saw two men in that vicinity, one a tall and the other a short man; that they had a roll of money, and he said to thеm, “You must have been robbing a train.” They replied, “Nevermind; they had the money.” Witness had never seen either of said parties since. An objection to this testimony by the Statе was sustained by the court. While the object of the evidence is not stated by appellant, we presume his purpose was to show some connection between these two men and the robbery; but the bill shows no such connection, and nothing further is shown in the record with reference to these two men. This isolated testimony, evеn in a case of purely circumstantial evidence, would be too remote; the rule being, in cases of circumstantial evidence, that it is relevant to prove motive on the part of some other person than the accused to commit the offense. But motive alone is not sufficient to authorize the evidenсe; there must be further testimony tending to connect such person with the offense. See Kunde v. State, 22 Tex. Crim. App., 65; Henry v. State (Austin term, 1895)
The court allowed the State to bring before the jury a lot of money, which was shown to have been buried in the lot of Ed Whatley, and which the witness, Walton Whatley, testified was a part of the fruits of the robbery. Appellant objected to this testimony, on the general ground that it was immaterial, and that the only testimony which located the money was by the accomplice, Walton Whatley. In our opinion, this testimony was material, and the money was sufficiently identified for the purpose of presenting it in evidence before the jury. Moreover, the finding of. this money buried in Whatley’s lot, and its identification by Walton Whatley, was a .circumstance strongly corroborаtive of the testimony of several other State’s witnesses in this case. The appellant proposed to prove by Parker, on cross-examination, what Ed Whаtley told him (Parker) about his connection with the robbery, this conversation being also in the presence of the appellant. The State is not shown to have introduced in evidence anything as to any conversation between Parker and Whatley; and, in the absence of such showing, we fail to see how the defendant cоuld produce in evidence these statements of what Whatley had said as to the robbery. We believe it was proper for the State to have proved' оn cross-examination of the witness, Julia Eldridge, that she was the kept woman of Crain. This was testimony going to her discredit before the jury. The court permitted the State to prove, by the witnesses Redden and Parker," certain statements made by said defendant to them while he was in jail. This testimony, as shown by the court’s explanation to the bill, was admitted after the defendant was on the stand and had testified, and was allowed by the court for the purpose of impeachment of defendant’s testimony; and the сourt, in its charge, so limited the effect and purpose of said evidence. In this there was no error. Nor was there any error in permitting the witness, Darst, after the defendant had closed his testimony, to testify in the case. This testimony, perhaps, Avas not striely in rebuttal, but no abuse of the discretion of the court appears in this regard. The judgment is affirmed.
Affirmed.
[Note.—Appellant filed a motion for rehearing which was overruled without a written opinion.—Reporter.]