1. Severance of Joint Defendants.
The right of defendants to a severance at the trial will not be granted when the severance will operate as a continuance of the case. Code Crim. Proc., Art. 669a.
2. Robbery — Indictment — Duplicity.
Where an indictment for robbery charges in one count the taking of $1282.22; and, also further charges the taking of $100 other dollars from the same assaulted party. Held: The transactions were not incongruous, and the indictment is not duplicituous.
3. Same — Asportation.
An indictment for robbery which alleged that defendant "fraudulently took from the possession of said A.," etc., is sufficient without a further allegation that the property was carried away. As in theft, so in robbery, an allegation of asportation is unnecessary in the indictment, the same language substantially being used to define both offenses.
4. Same — Description of Money — Meaning of the Term Money.
In an indictment for robbery, where the money taken was described as, "Twelve hundred and eighty-two dollars and twenty-two cents, in money of the value of twelve hundred and eighty-two dollars and twenty-two cents, and one hundred dollars in money of the value of one hundred dollars." Held: The description of the money was sufficient. The term "money" means that which is by the acts of Congress of the United States made a legal tender, whether coin or currency. Following, Menear v. State, 30 Tex.Crim. App., 475.
5. Evidence — Testimony Too Remote.
On a trial for robbery, where defendant offered to prove that a few days before the robbery, a witness saw two men in the vicinity, one tall, and the other a short man with a roll of money, and that he said to them, "You must have been robbing a train;" to which they replied, "Never mind, they had the money;" no connection shown between these men and the robbery. Held: The evidence was too remote, and was properly excluded by the court, and especially so in view of the positive evidence which identified the robbers.
6. Conspiracy — Evidence — Acts and Declarations of Co-conspirators.
Where a conspiracy to commit crime has been established, what either of the parties said or did in pursuance thereof and prior to its consummation, is admissible as evidence against either of the others.
7. Identification of Defendants — Witness' Explanation of His Conduct With Reference Thereto.
When a witness testifies that he identified the defendants at the time they committed the offense, it is permissible for him to testify, that afterwards he failed to point them out and identify them when he had an opportunity, because he was afraid of his personal safety should he then accuse the defendants of the crime.
8. Evidence — Unsigned Letter.
9. Indictment — Money — Fruits of the Crime — Identification of.
On a trial for robbery, it is competent and admissible to bring before the jury, as fruits of the robbery, a lot of money, which was shown to have been buried on the premises of one of the defendants; and where it had been located by the testimony of an accomplice, and identified by him.
10. Evidence — Statement of a Codefendant to a Third Party.
Evidence of the statements made in conversation by a codefendant to a witness, in the presence of defendant, about his connection with the crime, is inadmissible on cross-examination of the witness where the State had not introduced in evidence anything as to a conversation between these parties.
11. Evidence to Discredit a Witness.
It is competent for the State, as going to the discredit of a female witness, who has testified for the defendant, to prove, on her cross-examination, that she was the kept woman of a codefendant.
12. Impeachment of a Defendant Witness, by Statements Made While in Jail — Charge.
It is competent to impeach a defendant, who has testified in his own behalf as a witness, by proof of contradictory statements made by him while he was in jail. But, in such case, it is the duty of the court, as was done, to limit and restrict the effect and purpose of such evidence.
13. Introduction of Evidence by the State after Defendant has Closed — Practice.
It is within the discretion of the trial court, after the defendant has closed his testimony, to permit the State to introduce evidence not strictly in rebuttal. And the action of the court in this regard will not be reviewed, where it is not shown that the discretion has been abused.
HENDERSON, JUDGE.
The 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 the 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 to continue 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 charges that the defendant took one hundred other dollars from said C.M. Adams. The transaction were not incongruous, and there is no duplicity in the indictment. Appellant also 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 merely 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 property 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 of 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 embezzlement, has been defined by our statutes. See Code Crim. Proc., Art. 428i, and Block v. State, 44 Tex. 620. The term "money" has also been construed, under the statute making the misapplication of public money an offense; and it is held that money means "the legal tender, metallic coins or legal tender currency of the United States." See Lewis v. State, 28 Tex.Crim. App., 140. We hold that, as to robbery, the term "money" means the same thing. It means that which is by the acts of the Congress of the United States made a legal tender, whether coin or currency; and the allegations of the indictment in this regard were sufficient. See Menear v. State; 30 Tex.Crim. App., 475.
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 them, "You must have been robbing a train." They replied, "Never mind; they had the money." Witness had never seen either of said parties since. An objection to this testimony by the State 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, even 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 evidence; 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) 30 S.W. Rep., 802. Not only is there a want of testimony tending to show any connection between said two strangers and said robbery, but this case is one in which there was positive evidence identifying these robbers. This also disposes of appellant's bill of exception No. 20. The court permitted testimony, over appellant's objection, that Ed Whatley, on the 20th of December, three days preceding the robbery, inquired of the witness, C.M. Adams, the express agent, when the money to pay the guards would arrive. This testimony, we think, was admissible. The record abundantly shows a conspiracy and acting together on the part of these three men, Whatley, Crain, and Thompson, to perpetrate the robbery, and what either did or said in pursuance thereof, and prior to its consummation, was admissible against either of the others. In our opinion, after it had been shown that the Deputy Sheriff, Dolfino, saw and identified the men at the time they committed the robbery; that thereafter he failed to point them out or identify them when he had an opportunity to do so; that his reason for such conduct was because he was afraid of his personal safety should he accuse the defendants of the crime — this was legitimate testimony to explain his conduct. The State introduced a letter purporting to be written by the defendant to Ed Whatley, which was not signed, but it was shown by testimony that it was in the handwriting of appellant. While the appellant's bill shows as a ground of his objection that the State had not proved that it was in Thompson's handwriting, the facts in that connection are not stated. The bill, however, further shows that one Jack Carroll, had testified that he knew defendant Thompson's handwriting. Before a letter could have been excluded on this ground, the bill should have shown affirmatively that there was no proof that said letter was in the handwriting of the defendant Thompson. If we refer to the statement of facts, not only does the proof show that the letter was in the handwriting of the defendant Thompson, but its contents and the surrounding circumstances strongly corroborate this evidence.
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 corroborative of the testimony of several other State's witnesses in this case. The appellant proposed to prove by Parker, on cross-examination, what Ed Whatley 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 could 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 on 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 court, 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, was not stricly 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.]