1. State's Witness Whose Name is not Endorsed on Indictment.
It constitutes no ground of objection to a witness testifying that his name has not been indorsed upon the indictment.
2. Witness not Under "The Rule" — Officers of Court — Practice.
It is within the discretion of the court to permit a witness to testify, who has not been placed under the rule. And, it is entirely within the discretion of the court to excuse from "the rule," officers of court (as deputy sheriffs), whose services may be necessary about the court room.
3. Confessions While in Arrest, Before Examining Court — Predicate For.
4. Robbery — Possession and Ownership of Property Taken.
Where an indictment for robbery alleged, that the property belonged to, and was taken from the possession of, Mrs. B., and the evidence was that the property taken was a gun, which was owned by the son of Mrs. B., who was thirty years of age, who was absent at the time; and that, when taken, it was not taken from the person or manual possession of Mrs. B., but was a few feet from her, and in a room in the house. Held: It was not necessary for the indictment for robbery to allege the ownership and want of consent. And the proof showing that Mrs. B., at the time, was in the actual care, control and management of the property, and that she had control of the house and its contents, the evidence supports the conviction, and a charge of the court, in consonance with these legal propositions, was correct.
5. Confessions — Charge.
Where there is no evidence impeaching the predicate laid for the introduction in evidence of defendant's confessions, it is not error for the court to refuse to instruct the jury, that before the confession could be considered, the jury must believe, that the same was made without compulsion, and without the fear of punishment or hope of reward; and, that they must further believe, that defendant was cautioned, that the statement made by him might be used against him, otherwise they would disregard and not consider said confession.
DAVIDSON, JUDGE.
Appellants were convicted of robbery, and given twenty-five years each in the penitentiary, and prosecute this appeal. Appellants object to the action of the court in permitting the witness, Perkins, to testify in the case, for the reason that his name did not appear on the indictment, defendants, therefore, having no notice that said Perkins would be used as a witness, and, further, because Perkins had been in the court room during the admission of all the testimony which had been introduced, up to the time that he was placed on the witness stand. It is further stated that the rule had been invoked, and the witnesses had been placed under the rule. It constitutes no ground of objection to a witness testifying that his name was not placed upon the back of the indictment. If the defendants had been surprised at the testimony, or were placed at a disadvantage before the jury on this account, they might have moved for a continuance, the refusal to grant which might or might not have constituted reversible error, and would depend upon the facts. It seems, and the bill of exception so states, that Perkins was a deputy sheriff, and was needed in the court room during the trial. It is within the discretion of the court to permit a witness to testify who has not been placed under the rule. This is within the sound discretion of the court, and the abuse of this discretion will not be presumed, but such abuse must be clearly shown. We do not understand that the court has abused that discretion in permitting a deputy sheriff to testify who has not been placed under the rule, when the services of that officer may be necessary about the court room. To hold that the court would not be permitted to exercise its discretion in this matter, as was done in this case, might end in the defendant's placing all of the officers of court under the rule, thus leaving the court helpless. The witness, Mahoney, was permitted to testify on the trial. He had not been placed under the rule, but had been in the court room, and "heard the last half of Gorman's testimony," wherein said Gorman testified in regard to Ed Bleick having identified the shotgun which was pawned by the defendant, John Williams. The gun referred to was the gun alleged to have been taken from the prosecutrix. Mahoney was introduced for the purpose of proving that he, as justice of the peace, wrote out the statement and confession of the defendant, John Williams. It is not attempted to be shown by this bill, so far as we understand it, that the discretion of the court was in any sense abused.
By the third bill of exceptions it is shown that the State introduced the witness, Mahoney, who, as justice of the peace, tried appellants, as an examining court. He was introduced for the purpose of identifying the confession of the defendant, John Williams, which being done, the State offered in evidence the said confession. This confession was reduced to writing, and signed and sworn to by the defendant, John Williams. The ground of objection urged to the introduction of the confession was because it did not appear that the witness had warned the defendant that the statement would be used against him, and it did appear that the defendant was under arrest, and in charge of an officer at the time he made said statement. The bill of exceptions, as well as the statement of facts, shows that the witness did warn Williams that any statement or confession he might, make might be used against him as evidence; that he did not ask Williams to make any statement; that Williams voluntaiily made the confession. The statement of facts in this connection shows that said witness identified the written confession referred to as the one made by defendant, Williams, and in this connection further testified as follows: "Before I wrote this, he [Williams] was duly warned and sworn. I told him, and warned him that, if he made any statement, it might be used against him, and told him not to make any statement that might be used against him. I did not tell him that it might be used in his favor. I told him it might be used against him. To the best of my recollection, I told him the statement night be used against him, and warned him not to make any statement. It was made at his own solicitation. It was voluntary." It was also shown that the defendant was under arrest at the time. This was a sufficient predicate to authorize the introduction of the written statement of the defendant, Williams. Said written statement was then introduced, the substance of which was that he and Gordon went to the place of the robbery, and demanded of Mrs. Bleick something to eat. She informed them that she had nothing to eat, except some bread. They then went up on the gallery, walked in together, side by side, to where Mrs. Bleick was standing in the kitchen. Both pulled their pistols on her, and demanded money from her. "She said she had no money. I then said, 'You must have some money,' and Gordon then told her to go and get that money.' She said there was no money, as she had spent the last for sugar. We both then commenced to search for the money. We found no money, but got a shotgun and some cartridges which were in the house. The gun was taken by Gordon. We then came out of the house, and made our way to Huston. I pawned the gun at Sweeney's pawnshop, and got five dollars for it, and it was divided between us." There was no error in admitting this testimony. The predicate was properly laid, as shown by both the bill of exceptions and the statement of facts. "Being cautioned as the law directs, the fact that he was under arrest does not affect the question; for, with the caution, his statement would be precisely the same as if he was not under arrest." See, Salas v. State, 31 Tex. Crim. 485, and Kirby v. State, Tex.Crim. App., 13.
The defendants requested a charge that, unless the jury believed that the property alleged to have been taken was the property of Mrs. H. Bleick, they would find the defendants not guilty. They further asked a special charge, that, unless the jury believed beyond a reasonable doubt that the property alleged to have men taken was taken from the person and possession of Mrs. Bleick, then they should acquit. They also asked a special charge to the effect that if the jury believed defendants guilty of any other offense than robbery, and they did not believe this to be a case of robbery, they would acquit. These charges were refused. The court in this connection charged the jury that if the gun actually belonged to Ed Bleick, if taken at all, was in the possession, charge, and control of Mrs. Bleick, then the gun is deemed, within the law of this case, to have been the property of Mrs. Bleick: and, to constitute a taking of it from her possession, it would not be necessary that it should have been taken from her person, provided it was taken from her actual possession, charge and control; and in such case it would not be necessary for the State to prove that said Ed Bleick did not consent to the taking of said gun, if it was taken. In this connection the court further charged the jury that, before they could convict, they must believe that the defendants, by exhibiting and using a pistol — and that pistol a firearm or a weapon calculated reasonably and probably, as used, to kill — did fraudulently take the gun from the possession of Mrs. Bleick, without her consent, and with the intent to deprive her of the gun and its value, and to appropriate it to their own use; that then they would be guilty. We have only stated the substance of the charge of the court on this line, and have not undertaken to give the exact language or a proper form. We believe the court's charge was correct, and there was no error in refusing the special charges above requested by appellants. The indictment alleged that the property was taken from the person and possession of Mrs. Bleick, and that it was then and there the personal property of Mrs. Bleick, with the intent to deprive her of the same, and to appropriate it, etc. Under the statute of robbery, it is only necessary to charge that the property was fraudulently taken by force or by violence, or by the use of fier-arms, etc., from the person and possession of the party holding the same. It is not necessary to allege the ownership and want of consent. If, as a matter of fact, the property was not the property of Mrs. Bleick, but that of her son, and the appellants had the authority of the real owner to take the property, this would be a matter for them to prove. It was not necessary for the State to show they did not have the consent of the real owner. In this case it is not denied that the property was taken from the possession of Mrs. Bleick. Appellants offer no proof indicating they had the consent of the real owner, Ed Bleick, to take the property; hence those issues, as set forth in the special requested instructions, were proerly withheld from the jury. In other words, the court did not err in failing to instruct the jury in these respects, as requested by appellants.
It is not necessary, under the state of case before us, to discuss the question of ownership. It is true, the indictment alleges that the ownership was in Mrs. Bleick; and the proof, we believe, sustains that allegation. Whether or not this would have constituted a variance, if it had been shown that the property was not in her actual care and control, is not necessary for us to discuss. The facts show that the premises belonged to her. She had the control of the house and of its contents. She and her son lived there, and he assisted in the support of the family; and her testimony shows that she had the actual care, control and management of the entire premises and the things. about the premises. Her son was not at home, was away at work. Mrs. Bleick being alone at the time of the taking. Even in a case of theft, we are of opinion that this testimony would have constituted her the owner in law. Ownership may be constituted as well by actual control, care and management of property, in cases of this sort, as by proof of real ownership. We believe the court's charge was correct, properly submitting the law applicable to the facts; and there was no error in refusing the requested special instructions asked by appellants. Appellants also asked a charge that, before the jury could consider the confession proved against Williams, it must appear that the same was freely made, without compulsion or persuasion, and without the fear of punishment or the hope of reward; and that if, at the time said confession was made, defendant was under arrest, it must further appear that the defendant was cautioned that the statement might be used against him, otherwise they should disregard and not consider said, confession. Under a proper case, the charge requested should have been given, but the facts of this case did not warrant it. There is no issue raised by the testimony to authorize this charge. The proof is unchallenged and uncontradicted that the defendant, Williams, made the confession voluntarily, against the advice and admonition of the officer to whom it was made, and with the thorough understanding that it might be used against him. If this had been denied, and an issue raised as to whether or not the predicate had been laid, then it would have been proper for the court to have submitted that issue to the jury. That rule is well settled, but such a charge is not required or authorized when there is no evidence impeaching the predicate laid for the purpose of introducing the confession. It is further contended that the testimony is not sufficient to support this conviction. We are of opinion that it is. The testimony of Mrs. Bleick makes it a case of robbery by the use of firearms. The confession of the appellant, Williams, so far as he is concerned, makes it a case of robbery. Mrs. Bleick identified both of the appellants, and fastens the crime upon them by her testitimony, and they have introduced no evidence to the contrary. Finding no reversible error in the record, the judgment is affirmed.
Affirmed.
[NOTE. — Appellants' motion for rehearing was overruled without written opinion. — Reporter.]