
    GONZALES v. STATE.
    (No. 5986.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1920.)
    1. Criminal law &wkey;>27 — Robbery <&wkey;30 — Robbery is a felony when by assault, and capital when weapons are used.
    The crime of robbery by assault is a felony, but not capital, but becomes capital when deadly weapons are used, under Pen. Code 1911, art. 1327.
    2. Indictment and information &wkey;> 132(2)— State 'may abandon capital phase of robbery prosecution.
    Where indictment contains both robbery by assault and use of deadly weapons, that part, charging the use of deadly weapons, which merely enhances the punishment, is not essential; and it is within the power of the state to abandon that phase and prosecute on the other, under Pen. Code 1911, art. 1327.
    3. Jury <&wkey;70(2) — Accused entitled to special venire in capital case.
    In a capital case, the accused is entitled to a special venire, and may demand such at the time the case is called for trial.
    4. Indictment and information <&wkey;(32(2)— Abandonment of capital phase of indictment, sanctioned by trial judge, amounted to election.
    Where an indictment charged both robbery by assault and robbery by use of deadly weapons, action of the state in announcing that that part of the indictment making it a capital case would not be insisted upon, when sanctioned by the trial judge by confining the accused to 10 peremptory challenges, amounted to a dismissal of that part of the indictment which made the case capital, or at' least amounted to an election upon the part of the state to abandon that part of the indictment, which did not prejudice its right to proceed with the remainder, which charged a felony not requiring a special venire.
    5. Indictment and information <&wkey;8!(l), 159 (4) — Misspelling of name not ground for quashing and can be amended.
    Under Code Cr. Proc. 1911, art. 559, that defendant’s name, Gonzales, was misspelled “Gonzilas,” was no ground for quashing the indictment, since accused on suggestion could have had his name, properly spelled, inserted.
    6. Criminal law <&wkey;>792(l) — No error in charging on law of principals.
    In a prosecution for robbery, where it was the state’s theory that defendant and several others were acting together, held, that there was no error in charging on the law of principals.
    7. Criminal law <&wkey;422(2) — Evidence of conviction of codefendant of same offense inadmissible.
    It is not proper in a prosecution for highway robbery to permit the state to prove that a codefendant has been convicted and sent to the penitentiary for highway robbery.
    8. Criminal law <&wkey;l09l (4) — Evidence as to conviction of codefendant held not shown inadmissible by bill.
    A bill of exceptions in a prosecution for highway robbery, complaining of proof by the state that a codefendant had been convicted and sent to the penitentiary for the crime of highway robbery, did not show error, where it did not appear that the conviction of the codefendant grew out of the same transaction as that involving the accused.
    9. Criminal law &wkey;>l09l (8) — Bill of exceptions must show that improper argument was prejudicial.
    A bill of exceptions, complaining of improper argument by prosecuting attorney, should disclose, not only the argument that is complained of, but such pertinent facts as may be necessary to enable the court to determine whether the error has been committed, and, if so, whether it is such as authorizes a reversal of the case.
    10. Criminal law 1170(1) — Refusal to permit proof of admitted fact not prejudicial error.
    Complaint cannot be, made of refusal of the court to permit accused to prove an undisputed fact.
    11. Criminal law &wkey;>1092(l4) — Statement of facts in objection, not certificate of judge that they are true.
    Incorporation in bill of exception of grounds of objection is not a certificate of the judge that the facts which form the basis of the objection are true, merely showing that such an objection was made.
    12. Criminal law &wkey;>l09l (8) — Remark of prosecuting attorney held not shown by bill to have been harmful.
    In a prosecution for highway robbery, where-it was the state’s theory that defendant and a certain woman were acting together, and defendant testified that he had not known her before the crime, whereupon the prosecuting attorney asked, “If she says you did, she is mistaken?” a bill, complaining of such remark, failed to show prejudice, where it did not disclose whether such woman had or had not made the statement referred to, and it was not otherwise disclosed in what manner the remark of the prosecuting attorney might have prejudiced the accused.
    13. Criminal law <&wkey;957(5) — Testimony of jurors held incompetent on motion for new trial.
    Testimony of jurors as to the deductions they drew from a remark of the county attorney made on the trial was not admissible on hearing of motion for new trial, as proof of such deductions of jurors trenches upon the rule declaring them incompetent to impeach the verdict, under Code Or. Proe. 1911, art. 837.
    14. Criminal law <&wkey;855(8) — Receipt of information by juror of illness in family held not to authorize reversal of judgment.
    Receipt by a juror of information that members of his family were sick will not authorize a reversal of a judgment of conviction, where the facts reject any presumption of injury obtaining by reason of his conversing with outsiders.
    Appeal from District Court, Wichita County ; C. C. McDonald, Special Judge.
    P. B. Gonzales was convicted of robbery, and he appeals.
    Affirmed.
    Heyser, Hicks, Wilson & Williams, of Wichita Falls, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of robbery, and punishment fixed at confinement in the penitentiary for seven years.

One Malea was at nighttime walking on the streets of the city of Wichita Palls, in company with a woman by the name of Ruby Taggart and a man, who was his friend. Malea and his friend were accosted by two men, a pistol was presented, and their property, consisting of money and jewelry, taken from them. The woman fled. It is thd state’s theory that the woman, Ruby Taggart, the appellant, and a companion named McBride, were acting together. Malea and Ruby Taggart had previously met, and by agreement had occupied the same room at a hotel. He testified that upon her suggestion he and his companion were going in her company to a place where she claimed there was another woman and something to drink. The assailants.were strangers to Malea. He reported the robbery, and described the assailants, one as having the appearance of an Indian, and the other a smaller man. Subsequently the appellant was arrested in the city of Ft;. Worth, occupying the same room and bed with Ruby Taggart, and in the room some of the property which was taken from Malea was found. Malea identified the appellant as one of his assailants, at the time of his arrest, and subsequently upon the trial.

The indictment charged robbery by assault and violence, and also charged the use of firearms. The crime of robbery by assault is a felony, but not capital; however, ' when deadly weapons are used it becomes capital. Penal Code, art. 1327. Where the indictment contains both phases of the crime, that charging the ujse of fireams, which merely enhances the punishment, is not essential, and it would be within the power of the state to abandon that phase and prosecute upon the other. Crouch v. State, 219 S. W. 1099. The state, in the instant case, as we understand the record, pursued practically this course, by announcing that that part of the indictment making it a capital case would not he insisted upon. The indictment was filed during term time, and thecase at the same term was tried about 40 days after the indictment was presented. No request was made by either the state or the appellant for special venire. When announcement was made, the appellant advised the court that he would claim the privilege of exercising fifteen peremptory challenges. Being advised by the court he would not sanction this course, but would confine him to 10 such challenges, they proceeded to select the jury, the appellant exercising 8 peremptory challenges. In a capital case the accused is entitled to a special venire; and, assuming that the appellant was to be tried for a capital offense, he would have been within his rights to demand a special venire at the time the case was called for trial. Farrar v. State, 44 Tex. Cr. R. 2S6, 70 S. W. 209; Burries v. State, 36 Tex. Cr. R. 14, 35 S. W. 164. Whether his failure to demand a special venire at that time was a waiver of that right, under the circumstances, we need hot decide, as in* our judgment the action of the state, which was sanctioned by the trial judge, amounted to a dismissal of that part of the indictment which made the case capital. At least it amounted to an election upon the part of the state to abandon that part of the indictment, which did not prejudice its right to proceed with the remainder, which charged a felony not requiring a special venire. Weaver v. State, 52 Tex. Cr. R. 11, 105 S. W. 189.

In the indictment appellant’s name was spelled “Gonzilas.” This was not ground for quashing the indictment. He might, on suggestion, have had his name, properly spelled, inserted. This is statutory. C. C. P. art. 559.

There was no error in charging on the law of principals.

Complaint is macle in a bill of exceptions of proof that one McBride, a codefendant of appellant, had been convicted and sent to the penitentiary for the crime of highway robbery. It is not made to appear by the bill that this conviction grew out of the same transaction as that involving the appellant. By another bill the contrary is shown. Such proof would not have been admissible. Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822. The bill leaves us without facts upon which to determine that the evidence was not admissible upon some other phase of the case, or that it was in any way calculated to prejudice the rights of the appellant.

The substance of bill of exceptions No. 5 is quoted thus:

“The prosecuting attorney stated in his closing argument before the jury, ‘There sits Bulah Gonzales, and she could have taken the stand and told you why the property was in the room of McBride,’ which statement was excepted to by the appellant as being irrelevant, immaterial, prejudicial, and not binding upon defendant.”

It is said by Mr. Branch in his Annotated Texas Penal Code, p. 204:

“Before a reversal can be had on account of improper argument of state’s counsel, it must clearly appear that the remarks were improper, and that they were of a material character, and such as under the circumstances are calculated to injuriously affect the rights of the defendant.”

See House v. State, 19 Tex. App. 239, and other cases cited by the author. It is obviously a burden, that the reviewing court cannot assume, to go through the record and determine the relation of an alleged improper argument to the case and its probable effect upon the jury, and one that it could not discharge without knowledge of facts which are probably not disclosed by the record, such as the invitations extended in the arguments of opposing counsel to enlarge the scope. It is therefore necessary to adhere to the rule that the bill of exceptions should disclose, not only the argument that is complained of, but such pertinent facts as may be necessary to enable the court to determine whether an error has been committed, and, if so, whether it is such as authorizes a reversal of the case. The bill before us does not give such information; and the same is true of other bills relating to argument.

Some bills appear, complaining of the refusal of the court to permit appellant to prove by the prosecuting witness that he had associated with the woman in the case prior to the robbery; the theory being that opportunity would thus have been afforded for her to steal the property while occupying the same room. It being an undisputed fact that the woman did occupy the same room with the appellant before the robbery, the complaint is without merit.

It was also undisputed that at the time of the robbery Malea and his male companion, accompanied by the Taggart woman, were on their way to visit another woman. The bill complaining of the refusal of the court to permit proof of this fact presents no harmful error.

Bill of exceptions No. 15 is as follows:

“When P. B. Gonzales, defendant, was on trial in this ease, and on cross-examination by-prosecuting attorney, Mr. Davenport, he persistently stated on examination of P. B. Gonzales and asked the following questions relative to Ruby Taggart, which questions were as follows: ‘Q. And you had known her before! A. No, sir. Q. If she says you did, she is mistaken?’ — to which statement and questions defendant’s attorney objected, stating there was no statement of hers before the court, to which Mr. Davenport replied, ‘We tried to get it before the court,’ which statement was made in the presence of the jury, and for the only purpose of conveying to the jurors that Ruby Taggart had made a statement which was prejudicial, and when Ruby Taggart was not on trial in this case, and to which testimony defendant objected as being irrelevant, not binding on the defendant, and prejudicial, and the court overruled said objection and admitted said testimony, to which decision of the court the defendant then excepted.”

The incorporation in the bill of exceptions of the grounds of objection is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Ann. Texas P. 0. § 209, and cases there listed.

This bill fails to disclose whether Ruby Taggart had or had not made the statement referred to, nor was it otherwise disclosed in what manner the remark of the prosecuting attorney might have prejudiced the appellant. The remark may have been improper. It is not made to appear that it was harmful.

An effort was made on hearing of motion for new trial to prove by some of the jurors the deductions that they drew from the remark of the county attorney mentioned in the bill quoted The testimony of the jurors as to the deductions they drew from the proceedings mentioned was not available to aid the bill of exceptions. Proof of such deductions of jurors trenches upon the rule declaring them incompetent to impeach the verdict. Thompson on Trials, vol. 2, § 2618; Weatherford v. State, 31 Tex. Cr. R. 536, 21 S. W. 251, 37 Am. St. Rep. 828; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Watson v. State, 82 Tex. Cr. R. 310, 190 S. W. 1113. Under our statute (article 837), setting forth the grounds upon which new trial may be granted, exceptions arise to the general rule stated above, but the facts in the instant case do not come within any of these exceptions.

The receipt by one of the jurors of information that members of his family were sick, under the circumstances as detailed on the motion for new trial, does not authorize a reversal of the judgment. The facts rebut any presumption of injury obtaining by reason of his conversing with outsiders. Speer v. State, 57 Tex. Cr. R. 297, 123 S. W. 415; Bryan v. State, 63 Tex. Cr. R. 203, 139 S. W. 981; Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 889.

We have carefully read the statement of facts, and considered all matters raised for review, but are unable to reach the conclusion that there is presented anything which would justify a reversal of the judgment. It is therefore affirmed. 
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