
    TULLOS v. STATE.
    (No. 8788.)
    (Court of Criminal Appeals of Texas.
    April 1, 1925.)
    1. Criminal law <&wkey;>424(I) — 'Testimony that pistol was taken from companion of accused at arrest held competent.
    In prosecution for robbery accomplished by use of pistol, testimony that pistol was taken from companion of accused at arrest when they were found together on day after alleged offense held competent.
    2. Criminal law <&wkey;l 169(1) — Evidence that place of alleged robbery was pointed out subsequent thereto not prejudicai.
    In prosecution for robbery, testimony of witness that another person pointed out place of alleged robbery at time subsequent thereto, where no persons were named in connection with statement, held not sufficiently material to be prejudicial.
    3. Criminal law <&wkey;>l09l(ll) — Bill of exceptions in question and answer form cannot be considered.
    Bill of exceptions -in question and answer form cannot be considered.
    4. Witnesses <S=o374(2) — Testimony impeaching mother of accused as witness proper.
    In prosecution for robbery, where mother of accused testified she had given him sufficient money to cover amount found on him at arrest, and denied that she had said he won it from prosecutors in a crap game, testimony that she had made such statement held proper impeachment, as showing her interest in concealment of offense.
    5. Criminal law <&wkey;!036(8) — Lack of proper venue not raised during trial not considered.
    Under Code Cr. Proe. 1911, art. 938, lack of evidence showing venue, which was raised for first time in motion for new trial, and not made during trial of case, will not be considered.
    6. Criminal law &wkey;>l 169(1) ■— Testimony of acts and statements of mother of accused' attempting to interfere with arrest not prejudicial.
    In prosecution for robbery, testimony showing threatened, interference of mother with a gun to attempt to arrest accused, held not prejudicial as not tending to affect belief of jury in guilt or innocence, and especially where evidence of guilt was overwhelming.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    George Tullos was convicted of robbery, and be appeals.
    Affirmed.
    Geo. W. Johnson, of New Boston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMOBE, J.

Appellant was convicted in the district court of Bowie county of robbery, and his punishment fixed at five years in the penitentiary.

Two young men who were staying in a tent, according to the state's testimony, held up two negro men at the point of a pistol, on the occasion inquired about, and took from one of them $7.55. On the trial both of the negroes testified, positively identifying appellant as one of the robbers, and another man who happened along the road just immediately afterward testified to seeing appellant and his companion a little way from the point where the negroes claimed to have been robbed. The matter was reported, and that afternoon officers who went to the tent saw the two defendants running away in an opposite direction from that in which the officers were approaching. One of the officers fired a shot between the fleeing youths, intending to stop them. They made their escape. The next morning at a point some 12 miles distant from the tent they were again approached by officers as they walked upon a railroad track. They started to flee, but the officers produced a gun and threatened injury, unless they stopped, and they surrendered. Search of them revealed money in appellant’s pocket in amount either $7.55 or $8.05, the officer was not quite sure which, and the other had a pistol.

For the appellant, Mrs. Martin, mother of one of the young men, took'the stand and testified, claiming to have given them money enough to cover the amount found on them, and testified to other facts tending to rebut the state’s case. On cross-examination she denied having told parties that the boys had won the money from the negroes in a crap game. She was impeached by a witness who testified that she did so state. Appellant took the stand and denied his guilt, and stated that he and his companion had bought some whisky from the prosecuting negroes, asserting this apparently as a motive for the action and attitude of said witnesses in prosecuting him.

Appellant complains by a bill of exceptions of the testimony showing that a pistol was taken from his companion at the time they were arrested. In view of the fact that the assault and robbery were accomplished by the use of a pistol, this testimony was admissible. The parties charged were found together the day after the robbery. That one of them had a weapon similar to that with which ithe alleged robbery was effected’ would be competent for the purpose of identifying the appellant and as a circumstance corroborating the state’s theory of the method of such robbery. ’

We perceive no force in the objection offered to the testimony of Mr. McDuffie to the effect that Shafer pointed out a place subsequent to the robbery as the place where the negroes were robbed. The matter is and was of such little materiality, and shows that no persons were named in connection with the statement of Shafer, as that we would be compelled to hold it impossible of any prejudicial effect.

Bill of exceptions No. 4 is in question and answer form, and cannot be considered. Bill No. 5 presents the appellant’s objection to a question and its answer, propounded to Mrs. Martin, the mother of appellant’s codefendant. Said question was asked for the purpose of laying a predicate for impeachment, and for that purpose was admissible. Bill No. 6 presents the objection to the testimony offered to impeach the witness Mrs. Martin. The statement made by her and proved by this testimony was material, in that it showed her interest in the concealment of the offense and the effort to show that the defendants came by the money which was found on them in- a different manner from taking it from the state witnesses.

Bill No. 7 was taken to the lack of evidence showing venue. Article 938 of our Gode of Criminal Procedure directs that the venue shall not be made an issue before this court unless it was so made in the trial court. The bill under discussion was taken to the refusal of the motion for new trial based in part on the proposition that the venue was not proven. If such matter was to be made an issue at all, it should have been made so during the trial of the case.

The remaining bill oí exceptions was taken to the action of the trial court in permitting a witness to testify to the acts and statements of Mrs. Martin at the time the officers approached her tent in an effort to arrest the defendants. It was shown that she took a gun and interfered in the effort to arrest, and threatened to shoot the officers. We are not quite clear as to the extent testimony may go in showing the acts of those who aid prisoners to escape and who thus identify themselves with the antecedent criminal acts of such parties, but, as the matter of the acts and conduct of said witness, Mrs. Martin, for the defense, on said occasion, seems such as could hardly be appropriated by the jury for the purpose of affecting the guilt or innocence of appellant, and inasmuch as the case seems to show by overwhelming testimony the guilt of the accuséd, and that the jury gave him the lowest penalty, there seems little room for claim that the testimony of what was said and done by said woman, even if inadmissible, was hurtful, and we must decline to reverse the case for the admission of said testimony.

The judgment will be affirmed. 
      
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