George McCormick v. The State, 26 Tex. Ct. App. 678

Hurt, Judge. This is an appeal from a conviction for robbery. Appellant moved for a continuance to procure the testimony of James Satterwhite, George Long and Billy Emmick, citizens of Bexar county. By Satterwhite he proposed to prove that Billy Adams, when robbed, was so drunk as not to be able to know what he was doing or saying, incapable of reasoning or knowing anything. Couch, a witness to the robbery, was not drunk, and his and Adams’s account of the transaction corresponded remarkably well.

Again, the application is too vague; it fails to give us the facts from which it may reasonably be inferred that Satterwhite knew anything whatever of Adams’s condition, more than a number of other witnesses. He was certainly not present at the robbery. On the other hand, the record furnishes us with the acts and conduct of Adams prior to and at the time of the robbery, and from these we are clearly of the opinion that he was not so drunk as not to know what transpired on the occasion of the robbery.

By George Long defendant expected to prove that defendant had money before the robbery, and by this proof to contradict Adams, who said defendant did not have money. Adams and others testified to the facts strongly tending to show that defendant had no money before the robbery, and other witnesses testified that he had money just after the robbery. Nor does the application state how Long ascertained how appellant procured the money. The money was recovered by an officer next day, and was recognized by Adams as that which had been taken from him.

Hence we do not believe that, if Long had been present and swore to the facts as stated in the application, they would have been probably true. By Emmick the defendant expected to prove that defendant and Adams played poker before the robbery, in the back room of Lockwood’s saloon, and that defendant won ten dollars from Adams. If the desired witness had sworn to these facts, it-would have been in direct conflict with the evidence of several witnesses as well as with the conduct of accused at Lockwood’s saloon.

Looking to the facts expected to be proved by the absent witnesses, in connection with the testimony and surrounding circumstances proved on the trial, we do not believe them probably true, and there is no probability that on another trial the result would be different. The court did not err in overruling the application. At the corner of Presa and Garden streets, in the city of San Antonio, defendant came up with Couch and Adams, with his hat pulled down and his collar turned up, and said: “Hold up your hands! I am an officer of the law.

You are drunk and making a noise; I will take you in; both of you hold up your hands.” Adams and Couch threw up their hands. Defendant stepped up, put his hand in Adams’s pocket, and took out a roll of bills. Adams swore that he was very much alarmed and through fear threw up his hands, and while his hands were up the defendant took his money. Do these facts constitute robbery? We are clearly of the opinion they do. The indictment charged the robbery by means of assault, violence and putting in fear. If money was obtained by either means, the offense is complete.

Appellant requested the court to charge the jury: “If you believe from the evidence that defendant did obtain money from Will Adams, as charged in the indictment, then, if you further believe that he did so obtain said money from said Adams by reason of personating an officer, and said Adams, believing defendant to be an officer, stopped and allowed defendant to take Ms money, then you will find defendant not guilty.” The court refused this charge and defendant excepted. In this there was no error.

For there is no evidence tending to show that defendant simply told Adams that be was an officer, and by that means obtained Ms money. The robbery was at night, Adams was a stranger in the city and, when accosted in the manner shown in the record, it was reasonable and quite natural for him to be alarmed. He was told at the outset to throw up Ms bands. Being thus suddenly accosted and ordered to throw up* his bands, it was natural for him to become alarmed, and while thus situated the money was taken.

We do not doubt that this was the matured plan of defendant—the method preconceived by which to effect the robbery. Opinion delivered December 8, 1886. The matter complained of in the bill of exceptions with regard to the testimony of Hughes is very satisfactorily explained by the learned judge in his explanation to the bill, and will not be discussed.

But concede for argument’s sake only that, abstractly considered, disconnected from the other facts, there was error which might have injured defendant, when considered in connection with the whole of the evidence we can not perceive how it was at all probable that there could have been any damage whatever. That appellant is guilty from the record there is no doubt, for the testimony is clear, convincing, and we think overwhelming. We find no error in the conviction, and the judgment is affirmed. Affirmed„