
    CLEMENTS v. STATE.
    (No. 10298.)
    Court of Criminal Appeals of Texas.
    Feb. 16, 1927.
    Rehearing Denied May 11, 1927.
    1. Criminal law <&wkey;366(6) — Evidence as to conversations taking place within five minutes after robbery was accomplished held admissible as res gestee.
    In prosecution for robbery with firearms, testimony of witnesses present as to conversations which took place at time of and within five minutes after robbery had been accomplished held admissible as res gestee.
    2. Witnesses <&wkey;>263 — Permitting state to examine recalled witness and permit him to explain why he did not tell constable who committed robbery held proper.
    In robbery prosecution, where state’s witness had testified that he had not told constable of robbery because constable was drunk half the time, and where defendant recalled witness and proved by him that he saw the constable the next day after robbery and did not tell him who committed it, it was proper to permit state to re-examine witness and permit him to explain why he did not tell the constable.
    3. Criminal Iaw'c&wkey;>l 137(5) — Defendant, having proved that witness did not tell constable who committed robbery, cannot complain of state’s re-examination to show reason therefor.
    In robbery prosecution, where defendant recalled state’s witness to prove that witness saw the constable the next -morning after the robbery and did not tell him who committed it, he cannot complain that the court allowed witness, on re-examination, to explain the reason for not telling him.
    4. Criminal iato &wkey;>l 1701/2(1) — 'Error, if any, in permitting recall of witness to explain why he did not tell constable who committed robbery held harmless.
    Where defendant recalled state’s witness and proved by him that witness saw the constable the next morning after the robbery and did not tell him who committed it, any error in permitting state, on re-examination, to prove by witness his reason for not telling the constable at that time held harmless.
    5. Criminal law &wkey;>4l2(3) — Refusal of evidence of conversation between witness and proprietor of store robbed that he thought they had right parties held cnot error.
    In prosecution for robbery, court did not err in refusal to permit defendant to prove by witness that on day subsequent to robbery, about time of defendant’s arrest, witness had. conversation with owner of store robbed, who stated to witness about time of defendant’s arrest that they thought they had right parties but that he would like to have witness keep lookout and give him benefit of whatever he was able to find out; conversation not being persuasive that owner was not. certain that they had arrested the right parties.
    On Motion for Rehearing.
    6. Criminal law <§=wl 137(5) — Defendant, having opened up subject of state’s witness’ first tefling who robbed them, cannot complain of state’s redirect examination thereon.
    In robbery prosecution, where defendant on cross-examination of, state’s witness opened up the subject as-to who was the first man witness told defendant had robbed him, he cannot complain of state’s redirect examination interrogating witness on the same matter and later asking other witnesses about the conversation defendant had introduced.
    7. Criminal law <3^>366(l) — Acts and declarations of injured party or all participants in transaction are admissible in evidence if within rule of res gestee.
    In criminal prosecution, the acts and declarations of the injured party or of participants in the transaction are admissible in evidence if within the rule of res gestee.
    Commissioners’ Decision.
    Appeal from District Court, Navarro County ; Hawkins Scarborough, Judge.
    •H. A. Clements was convicted of robbery with firearms, and he appeals.
    Affirmed.
    Gibson, Lovett & Lovett, and Davis, Jester & Tarver, all of Corsicana, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEÁ, J.

The appellant was convicted in the district court of Navarro county for the offense of robbery with firearms, and his punishment assessed at five years in the penitentiary.

This is a companion case to that of Shannon v. State, 104 Tex. Cr. R. 483, 284 S. W. 586. The state’s testimony is sufficient to support the verdict, while, on the other hand,the defendant introduced testimony that would, if believed, entirely exonerate him. The record shows that one English and Phipps owned a store at Curry, Navarro county, Tex., and that' the store was robbed on one Sunday night about 9 o’clock, at which time English, one of the owners of the store, and a man by the name of Boone and one Kelly were inside of the'store, with the lights on, engaged in playing some kind of a game. The robbers, one of whom is alleged to have been the appellant, came in the front door armed and with handkerchiefs over their mouths. There were three of them in the party, two of whom came into the store and did the robbing, the other remaining on the outside. They were in the store but a few minutes and departed by the front door, the way they came in.

Bills of exceptions Nos. 1, -2, 3, and 4 complain that the trial court erred in permitting the witnesses A. L. English, E. B. Boone, and H. E. Kelly to testify to conversations that took place at the time of and within five minutes after the robbery had been accomplished. This evidence was clearly res gestae and admissible.

Bill of exceptions No. 5 complains that the witness Elbert Phipps, in response to.questions propounded to him by the county attorney, testified as follows:

“One reason why I didn’t tell old man Jones anything about the transaction on the next morning is because he was constable down there and was drunk half of the time, and I didn’t feel like he was capable of finding out anything, I didn’t think he could do any good and felt that it would do more harm than good if I told him who was suspected, and if he knew who it was I felt that he would like to tell them, and I wanted to find out who the third man was.”

The appellant recalled the witness Phipps, who was a state’s witness, and proved by him that he saw Jones the next morning after the robbery and that he did not tell Jones who committed the robbery. I't was proper, under the facts and circumstances of this case, for the state to re-examine him, and' the court committed no error in allowing the witness Phipps to explain why he did not tell Jones who committed the robbery. The appellant cannot be heard to complain, having brought about the situation himself, and, further, we hold that if same was error it was not such an error as would warrant a reversal of the case.

Bill of exception No. 6 complains at the action of the trial court in not permitting appellant to prove by the witness J. H. Jolly that on the next day subsequent to the robbery, and about the time defendant was arrested, that said witness Jolly had a conversation with the witness Elbert Phipps, the owner of the store that was robbed and the owner of the money that was taken, and that Phipps stated to said witness Jolly about the time appellant was arrested that they thought they had the right parties, yet he did not wish to make any mistake about the matter, and that he would like to have the witness Jolly keep on the lookout and give him the benefit of whatever he might be able to find out. The court refused to permit the witness to testify as to this conversation. The appellant contended that if Phipps made such a statement to Jolly it would be persuasive of the idea that neither Phipps nor his partner English was by any means certain that they had arrested the right parties, and that this testimony would cast doubt on the identification of the appellant. We are unable to agree with appellant’s contention.

The evidence in this case shows that Phipps was not present at the time of the robbery, and that English was present at the time appellant and his associates robbed the store. The witness Jolly testified on direct examination as follows:

“I met Mr. English, and he asked me if I had seen anybody come out that way, and I told him I had not, and he said: ‘X have been hijacked,’ and I said: ‘Did you recognize any of them? ’ and he said: ‘No.’ ”

The witness Phipps, not having been present at the time of the alleged robbery, could not possibly have identified appellant, and to have permitted witness Jolly to testify to the facts complained of in the bill would be, in effect, an effort to impeach the witness Phipps on a matter that he could not possibly have known anything about. We fail to see any error in the ruling of the court.

There being no other errors in the record, the judgment is affirmed.

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.

On Motion for Rehearing.

HAWKINS, J.

English and Phipps were partners in business. On the night of the robbery English, Kelly, and Boone were in the store playing dominoes. Parties entered the store, robbed English of about $30 which they took off of his person, and took about $170 from the cash register. Immediately after the robbers went out of the store English said to Kelly and Boone that he knew appellant was one of the robbers, and that he (English) was going to get his gun and follow them. Phipps was not in the store when the robbery occurred, but reached it between five and ten minutes later; English then made to him practically the same statement about appellant being one of the robbers as he had made to Boone and Kelly. These statements of English relative to appellant’s identity were testified to by English himself, and also by Boone and Kelly. Appellant renews his contention that admitting proof of English’s statements was error calling for a reversal. In further reviewing this question, we observe that appellant himself seems to have first gone into the subject, upon direct examination, the state confined . itself to' having English detail the facts of the robbery and testifying that he knew appellant was one of the robbers. On cross-examination, appellant elicited from English the following:

“The first man I told that this defendant, H. A. Clements, robbed me was Elbert Phipps — No; I will take that back; I told Boone and Kelly, just after' they went out, that it was Cork ■ (appellant).”

Having opened up the subject, it appears appellant was in no position to complain when the state, on redirect examination, interrogated the witness about the same matter, and later asked Boone and Kelly about the conversation that appellant himself had introduced.

But waiving the foregoing suggestion, we have again examined into the question on account of appellant so earnestly insisting that the evidence complained of was inadmissible. It is appellant’s proposition that, where identity of accused is in dispute, it is error to permit in evidence acts and declarations of persons done and said after the commission of the offense in the absence of accused.. We think the proposition as stated by appellant is too broad in that it fails to note that the acts and declarations of the injured party or of participants in a transaction would be admissible in evidence if coming within the rule of res gesta». Most of the. authorities cited by appellant are eases where evidence of third parties was admitted to the effect that the owner of stolen property identified it in accused’s absence under circumstances where no possible contention that it was res gestfe could have been tenable. One of the earlier cases to which we are referred is Anderson v. State, 14 Tex. App. 49. In the very brief opinion in that case Judge White used this language:

“What Salkill said to a third party, not "being res gestas, nor in the presence or hearing of accused, could and should not be used as evidence against the latter,”

—thus very clearly indicating if the statement had been res gesta» it would have been admissible. In Bowen v. State, 47 Tex. Cr. R. 137, 82 S. W. 520, a witness testified about what deceased said with reference to the identification of accused as the one who had assaulted him. It was held inadmissible because it was not “shown to have been the dying declaration of deceased Hays, nor is it shown to he a part of the res gestee.” In the recent case of Hendrix v. State, 105 Tex. Cr. R. 463, 289 S. W. 38, evidence of a third party as to a statement made by the injured person that he identified accused was held improperly admitted because it was not res gestae. The distinction is quite apparent in rape cases. The state may prove as original evidence that prosecutrix reported the alleged outrage, but is confined to merely proving that she made complaint unless her outcry was res gestae of the attack. If it comes within that rule, her statements and conduct is provable even to showing that she named her assailant. Branch’s Ann. Tex. P. C. § 1784. The distinction drawn is. very clear in Turman v. State, 50 Tex. Cr. R. 7, 95 S. W. 533. In that case, the state was permitted to prove that after being assaulted prosecu-trix fled from the scene and fainted. This was held admissible as béing res gestas of the transaction, but evidence that later she again fainted upon identifying her assailant was held inadmissible as not being within the res gestaa rule. We have been unable to agree with appellant’s contention that the evidence objected to was not res gestas of the robbery.

It is our opinion that appellant’s motion for rehearing should be overruled, and it is so ordered.

MORROW, P. J., not sitting. 
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