
    BATEMAN v. STATE.
    (No. 4406.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. Criminal Law <&wkey;1104(3) — Appeal — Statement op Facts — Transcript.
    A statement of facts in a criminal case transcribed in the record and certified as part of the transcript should be stricken and not considered on appeal, since the original statement should have been sent up independent of the transcript.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2776, 2886.]
    2. Criminal Law &wkey;369(15) — Evidence — Other Opeenses — Identity op Dependant.
    Where defendant was accused of robbery committed in a barn by three men whom the prosecuting witness could not identify, and there was evidence that four men, including defendant, had been taken by a jitney to the barn where three of them, including defendant, had left the car for about 15 minutes, and that after their return the four were taken to another place not far distant, where there was a gathering of negroes, evidence that the defendant and his companion committed another robbery there, and that defendant was recognized by several witnesses, was admissible to show the identity of defendant as one of those who committed the robbery with which he was charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 824.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    J. F. Bateman was convicted of robbery by the use of firearms, and he appeals. Affirmed.
    Chas. Ashworth and Ross Huffmaster, both of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of robbery by the use of firearms, and his punishment assessed at five years’ confinement in the penitentiary.

The Assistant Attorney General moves to strike out and not consider the statement of facts because not brought before this court in the manner provided by statute, which provides the statement of facts in felony cases must be brought up separate from the transcript.' It seems that this motion is well taken. The statement of facts was transcribed in the record and certified as part of the transcript. It should not have been included in the transcript, but the original'statement of facts should have been sent up independent of the transcript of the proceedings. The statement of facts has, however, been read, and, in view of the fact that this matter would be cured by certiorari or by agreement of counsel, we have concluded to look at the case as if the statement of facts was properly before us.

Bills of exception were taken to the action of the court permitting the introduction of testimony not immediately connected with the offense charged. Viewed in the light of the qualification of the judge, the case could be affirmed without reference to the statement of facts; but, viewed in the light of the statement of facts and qualification of the judge, for the judge refers to the statement of facts in his qualification, there seems to have been no error in admitting this testimony, viewed in any light.

Briefly, the case is that there was a negro social function several miles from Crandall, in Kaufman county. A jitney driver took defendant and three others from the town of Crandall to this negro meeting. Just before reaching the place where the function was in vogue, and about a mile distant, the car was stopped. The four got out of the car and took a drink. One of the parties got back in the car, while the other three went to a barn about 100 yards distant; they weré gone a few minutes and returned. The party, who is alleged to have been robbed testified that he was one of the parties in the bam when three men entered and “held them up.” They robbed witness of about $3. This incident is the basis of this prosecution. He did not recognize any of the parties. They had a small light which the three robbers extinguished. Upon returning to the jitney, these parties got in, and the car went on about a mile to where the negroes were assembled at the function and began a series of acts, exhibiting and shooting their pistols, and robbed at least one party of something like $7. The jitney driver sufficiently identified defendant as one of the parties he took in his car and as one of them who left and went to the barn where the witness said he was robbed of $3 by the exhibition of a pistol. He was not present at that robbery and knew nothing about it, otherwise than the fact that the three parties left the jitney and were gone 15 or 20 minutes and returned. The parties at the barn did not recognize any of the parties, but at the social function appellant was recognized as one pf those engaged in that robbery. Some of the witnesses who saw the defendant and his crowd at the social function were carried-to the jail the next day after the arrest of appellant and circumstantially recognized the defendant as one of them. His identity at the social function over appellant’s objection was properly admitted.

The objection urged to the introduction of this testimony was that it was developing another crime, which it is contended was illegitimate and the evidence inadmissible. We would be inclined to agree with this proposition if appellant had been clearly identified at the time as one of the parties to the transaction relied upon by the state for conviction; but, as this was not the case, we are of opinion the court did not err in admitting the evidence of identification at the other times and places mentioned. These two transactions occurred within 30 or 40 minutes of each other and at night. Where the identity of the party is not definite as connected with the offense on trial, extraneous offenses may be introduced to connect and identify appellant with the case on trial. See Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812, and Wright v. State, 56 Tex. Cr. R. 357, 120 S. W. 458.

Under this view of the case, we are of opinion that, even considering the statement of facts, there was no error in the ruling of the court.

The judgment will be affirmed. 
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