
    YEAGER v. STATE.
    (No. 10651.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    1. Criminal law &wkey;>423(3) — Where state claimed that defendant committed robbery acting with other defendants, telegrams between other defendants that one of them would be at city where robbery occurred held admissible.
    In prosecution for robbery, where the state claimed that the defendant committed the robbery acting with other defendants, admitting telegrams beween other defendants that one of them would be in the city where the robbery occurred on the Sunday preceding the robbery held not error.
    2. Searches and seizures <§=>7(26) — Defendant might not complain of search of automobile and apartment of codefendant.
    Contention that search of automobile and apartment was illegal, under Search and Seizure Law, because the officers had no search warrant held not open to defendant, where the automobile and apartment searched belonged to and were in possession of codefendant.
    3. Robbery <&wkey;23(3) — Admitting testimony that, after arrest of defendants and conversation
    , with one defendant out of presence and hearing of defendant on trial, witness and others found gun, no connection with robbery being shown, held error.
    In prosecution for robbery, admitting testimony that, after arresting defendants and placing them in jail and after a conversation with one defendant with reference to gun, out of presence and hearing of the defendant on trial, witness and others went to a certain spot and found the gun, there being no showing that gun had any connection with robbery oh with the defendant on trial, held error.
    4. Witnesses <&wkey;344(2) — Cross-examining defendant’s alibi witness respecting living with womam other than wife held error.
    Permitting cross-examination of defendant’s witness respecting his living with a woman other than his wife held error, especially in view of fact that witness had given testimony tending to prove defense of alibi.
    5. Criminal law <&wkey;810 — Instruction on law of principal and alibi held contradictory.
    Instruction on the law of principal that all are guilty provided crime was committed during the existence and execution of common de-; sign and intent, whether all were- bodily present when the offense was committed or not, and instruction on the law respecting alibi, that if evidence raised reasonable doubt as to presence of defendant at place where offense was committed he should be acquitted, held error as contradictory and confusing.
    6. Criminal law &wkey;>8l4(19) — Charge on principals respecting guilt though defendant was not present held error under evidence.
    Where the state contended that defendant ,was present at commission of the robbery and there was no evidence that he was absent, charge on principals that defendant might be guilty, though he was not bodily present when offense was committed, held error.
    7.Criminal law <&wkey;>878(l) — Where defendant was tried on two counts, general verdict assessing more than minimum punishment was erroneous.
    Where the defendant was tried on two counts charging robbery from different persons, general verdict of guilty assessing more than the minimum punishment held erroneous; jury being required to pass on two distinct felonies.
    Commissioners’ Decision.
    Appeal from District -Court, Bexar County; O. M. Fitzhugh, Special Judge.
    Otis Yeager was convicted of robbery with firearms, and he appeals.
    Reversed and remanded.
    W. C. Linden, Watson & Chapin, Hogan & Matthews, and E. B. Simmons, all of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Lamar G. Seeligson, Asst. Dist. Atty., both of San Antonio, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.,

The appellant was convicted of robbery with firearms and his punishment assessed at 7 years in the penitentiary.

The record discloses that the appellant, Earl Collins, Elmer Wilkens, Joe Hobrecht, Jack Smith, and Kenneth Smith were charged in the first count of an indictment with making an assault upor;, one William Herff with a deadly weapon, to wit, a gun, and taking from his person $19,138 in money, and in the third count with making an assault upon T. D. Anderson with a deadly weapon, to wit, a pistol, and taking from his person $19,138 in money. This is a companion case to that of Kenneth Smith v. State (No. 10442), decided March 30, 1927, 292 S. W. 877 yet [officially] unreported. The court submitted both counts of the indictment as given above, to the jury, and a general verdict of guilty was returned, assessing the punishment at 7 years in the penitentiary, as above stated. The record further discloses that the robbery was committed in the San Antonio National Bank, on or about March 30, 1926. It was the contention of the state that the appellant, acting with the other parties named in the indictment, robbed said bank on the date alleged in the indictment, at about 12:30 p. m., using sawed off shotguns and a pistol. The appellant entered a plea of not guilty and defended upon the ground of an alibi,-

The record contains 7 bills of exception. Bill No. 1 complains of the action of the court in permitting the state to introduce in evidence, over appellant’s objection, an exchange of telegrams between Kenneth Smith, at Corpus Christi, and his brother, at San Antonio, to tie effect that the former would be at the residence of his brother, Jack Smith, in San Antonio, on the Sunday preceding the alleged robbery. We are of the opinion that the appellant’s objection .went more to the weight than to the admissibility of this testimony, and that there was no error in the court’s action.

In bills Nos. 2, 3, and 4 complaint is made to the action of the court in permitting the officers to testify regarding the search of a Ford coupS belonging to eodefendant Jack Smith and the search of his apartment about 3 ,or 4 hours after the alleged robbery, and in permitting the introduction of evidence relative to finding certain caps in the coupé dnd finding a pistol and brief case in the apartment. Appellant contends that the search was illegal because the officers had no search warrant. These bills disclose, without contradiction, that the automobile and premises searched belonged to and were in the possession of eodefendant Jack Smith. This being true, the appellant is not in a position to urge the invalidity of said search and invoke the protection afforded by the Search' and Seizure Law. No one could urge this objection except Jack Smith. See Cornelius on Search and Seizure, § 12, where it is stated:

“The right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not ayailable to any one else.”

Numerous authorities are cited, including MacDaniel v. U. S. (C. C. A.) 294 F. 769; Essgee Co. v. U. S., 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917. Also see Dozier v. State, 105 Tex. Cr. R. 413, 289 S. W. 45.

In bill No. 5 complaint is made to the action of the court in permitting the. state’s witness Carver, a constable, to testify that after he had arrested Jack Smith and the appellant and placed them in jail, and after having a conversation with Jack Smith with reference to a gun, out of the presence and hearing of the appellant, he and other officers, accompanied by Jack Smith, went to a point in San Antonio near a bridge over the river and there found a gun, which was introduced in evidence. The bill shows that the officer was not informed that the appellant was in any wise connected with said gun, and was not told that the gun had any connection with the alleged robbery, but it was a- matter separate and apart therefrom. The appellant urged timely objection to this testimony, contending, among other things, that there was no identification that said gun was used by any of the parties in the alleged robbery, and that said testimony was hearsay as to the appellant and obtained after appellant and his codefendant were' in jail and from information furnished by his co-defendant Jack Smith, and that said gun was not shown to have been used in pursuance of a common design. We are of the opinion that the appellant’s contention in this respect will have to be sustained. The conspiracy,, if any existed, was ended, and this testimony was inadmissible against this appellant who was on trial alone. Mixon v. State (Tex. Cr. App.) 31 S. W. 409; Garcia v. State, 88 Tex. Cr. R. 605, 228 S. W. 938; Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739; Henry v. State, 100 Tex. Cr. R. 186, 272 S. W. 475.

In bill No. 6 complaint is made to the action of the court in permitting the state to prove the following on cross-examination of the witness Joe Hobrecht, who was jointly indicted with appellant, but whose ease had been dismissed:

“Q. Now, Mr. Hobrecht, on the day of the robbery, when did you get up that morning? A. I got up about 11:30 or 11:40.
“Q. Was any one in the room with you? A. My wife was in the room with me.
“Q. Is that your wife? A. * * * She is living with me as my wife.
“Q. You were already married to another woman? A. Yes, sir.
“Q. Then you have two wives, have you? A. She is just living with me as my wife.”

When the witness answered that his wife was with him in the room, the appellant objected to the balance of said testimony on the ground that same was a matter upon which the witness could not be legally impeached, that same constituted an effort to impeach the witness without showing a legal charge of felony or a misdemeanor involving moral turpitude, and that same was im-. material and prejudicial to the rights of the appellant. We think the admission of this testimony was error, especially in view of the fact that this witness had given testimony, which, if believed by the jury, would have tended to prove appellant’s alibi. Mr. Branch, in his Ann. P. O. § 165, states:

“Proof that defendant or any other witness associated with lewd women, or kept bad company, is not admissible for the purpose of impeaching the witness” (citing Holsey v. State, 24 Tex. App. 42, 5 S. W. 523; Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 718, and many other authorities).

Bill No. 7 complains of the action of the court in permitting the state to show by the witness Jud James that he knew of Jack Smith having previously been in trouble. In view of the fact that the court withdrew this evidence from the jury, and the further fact that the same question is not likely to arise upon another trial, we do not feel called upon to discuss this issue at 'this time.

The appellant, in the proper manner and at the proper time, objected to the court’s charge relative to principals, contending that same -was in direct conflict with and contradictory to that portion of the charge wherein the court instructed the jury on the law of alibi. The court, after charging the law generally on principles, further instructed the jury:

“When an offense has been actually committed by one or more persons, the true criterion for determining who are principals is, Did the parties act together in the commission of the offense, was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and execution of the common design and intent of all, whether in point of fact all were actually, bodily present on the ground when the offense was committed or not."

1 On the issue of alibi, the court charged as follows:

“Among other defenses set up by the defendant is what is known in legal phraseology as an alibi; that is, that if the offense was committed, as alleged, then the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed, and therefore was not and could not have been the person 'who committed the same.
“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time of the commission thereof, you will find the defendant ‘not guilty.’ ”

We are of the opinion that the appellant’s contention, to the effect that the court’s charge on these issues was contradictory and confusing to the jury, will have to be sustained. It will be observed that the charge on principals informs the jury that the appellant would be guilty, although he was not bodily present when the offense was committed, and in the charge on alibi the jury are told by the court that if the appellant was not present at the time of the alleged offense, but was elsewhere, or there is a reasonable doubt as to such matter, to acquit the appellant. The court should not have embraced in his charge on principals that portion of same relating to the absence of the appellant, as there was no evidence in the record raising such an issue. The state contended that appellant was present at the commission of the offense, and there was no evidence to the effect that he was absent but aiding and assisting the' other codefendants in the commission of said offense. We think the law announced in Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223, is applicable to the instant case. It appears that the trial court was following the charge given in the case of Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046, wherein this court held that it was not error for the trial court, in charging the law applicable to principals, to state that one need not be bodily present when the offense was committed in order to constitute him a principal. However, the facts presented in the instant case differ from those in the Middleton Case, and the issue of an alibi was not involved in the latter case; consequently, the law there announced would not apply to the facts in the instant case.

While the question, is not raised, the record discloses that the appellant and his codefendants were indicted in three counts, only the first and third being submitted to the jury by the court’s charge. These counts charged separate assaults upon Herff and Anderson, as previously stated. The second count in the- indictment charged said parties with an assault upon Messrs. Reitze and Erben. The trial judge in his charge failed to instruct the jury to mention in their verdict upon which of the two counts submitted to them they found appellant guilty, and a general verdict was returned by them assessing more than the minimum punishment. The jury were required to pass on two distinct felonies, and, the verdict returned being general, same is contrary to the doctrine announced many times by this court. See Modica v. State, 94 Tex. Cr. R. 403, 251 S. W. 1049, and Jones v. State, 101 Tex. Cr. R. 71, 274 S. W. 566. In view of another trial of this case, we suggest that the court should follow the practice recommended and the law announced, in the cases cited.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
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