
    COMPTON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.)
    1. Criminal Law (§ 1093) — Appeal—Bill of Exceptions.
    Where there is no bill of exceptions to_ a judgment of conviction other than to the denial of a motion for new trial, the bill cannot be treated as a bill of exceptions, and the questions must be reviewed as raised by the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. '§§ 2828-2833, 2919, 2920; Dee. Dig. § 1093.]
    2. Indictment and Information (§ 79) — Sufficiency.
    In an indictment for robbery of articles from two men, where they had been minutely described, the use of the word, “respectfully.” after the allegation that the articles were the property of the two victims, instead of the word “respectively,” was not misleading, and no ground for attack on appeal.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 209-214; Dee. Dig. § 79.]
    3. Robbery (§ 17) — Indictments—Description of Property Taken.
    An indictment for robbery alleging that the property taken was silver coin of the value of $1.50 sufficiently describes it.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. § 17.]
    4. Criminal Law (§ 1090)— Appeal — Bill of Exceptions.
    Where not presented by a bill of exceptions, the appellate court cannot review the error of the trial court in rushing through the case without giving accused, who was too poor to employ counsel, an opportunity to present any defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    5. Criminal Law (§ 641) — Trial — Representation by Counsel.
    Where the trial court found that accused was intelligent and desired to conduct his own defense, and required the clerk to summon the only witness that he desired, accused cannot complain that he was not given counsel, and that the case was speedily conducted..
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1496-1505; Dec. Dig. § 641.]
    6. Criminal Law (§ 365) — Evidence—Relevancy.
    In a prosecution for the robbery of two persons who were companions, where it appeared that the robbery of both of them was part of one transaction, evidence of each of the robberies was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 807; Dec. Dig. § 365.]
    7. Robbery (§ 27) — Trial—Instructions.
    In a prosecution for robbery, where the indictment charged that accused robbed two companions, and evidence of both robberies was admitted, the charge properly required the jury to believe that accused robbed both of the companions of the property described before a verdict of guilty should be rendered.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 38-40; Dec. Dig. § 27.]
    8. Criminal Law (§ 1036) — Appeal—Presentation of Grounds of Review in Court Below.
    In a prosecution for robbery, accused cannot complain that evidence showing that he robbed two companions at the same time was admitted, where there was no motion to compel the state to elect, and no complaint of the evidence was made until after judgment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig.,§§ 1631, 1640, 2639-2641; Dec. Dig. § 1036.]
    9. Criminal Law (§ 883) — Trial—Yerdict.
    In a prosecution for robbery, a verdict that, “We, the jury, find accused guilty and assess the penalty at five years in the penitentiary,” is sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2104-2106; Dec. Dig. § 883.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    C. B. Compton was convicted of robbery, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   PRENDERGAST, .7.

Appellant was convicted of robbery and given tbe lowest penalty — five years in tbe penitentiary.

Tbe charging part' of tbe indictment is as follows: “That O. B. Compton, in said county and state, on or about tbe 7th day of October, in tbe year of our Lord nineteen hundred and eleven, and before tbe presentment of this indictment, did then and there unlawfully and willfully make an assault upon the person of Rufus Riley, and Bob Jamison, and did then and there by said assault and by said violence to tbe said Rufus Riley and tbe said Bob Jamison, and, by putting tbe said Rufus Riley and the said Bob Jamison in fear of life and bodily injury, did then and there fraudulently take from tbe person and possession and without the consent, and against tbe will of each of them, the said Rufus Riley and the said Bob Jami-son, the property so taken from the said Rufus Riley as hereinbefore stated, being as follows, to wit: One silver dollar of tbe value of one dollar, two pocketknives, of tbe value of one dollar each, and one coat, of tbe value of ten dollars, the property so taken as hereinbefore stated from the said Bob Jamison being as follows, to wit: Silver coin of tbe value of one dollar and fifty cents, said property as hereinbefore described then and there being the corporeal personal property of tbe said Rufus Riley and tbe said Bob Jamison respectfully and as hereinbefore alleged, with tbe fraudulent intent then and there of him, tbe said C. B. Compton, to deprive tbe said Rufus Riley and the said Bob Jamison, respectfully, and as hereinbefore alleged, of the value of said property and to appropriate, the same to tbe use and benefit of him, tbe said C. B. Compton.”'

Appellant made no motion in the court below to quash tbe indictment on any ground. All tbe questions he raises are raised by motion for new trial. There is no bill of exceptions other than a bill to the overruling of his motion for new trial. The motion for new trial presents several separate and distinct grounds therefor. Under such circumstances, we cannot treat it as a bill of exceptions, but must review the questions as raised by the motion for new trial. Appellant was not represented by an attorney until after his conviction.

In the latter part of the indictment, it is perfectly apparent that where it charges, being tbe property “of tbe said Rufus Riley and tbe said Bob Jamison respectfully,” and then later “to deprive the said Rufus Riley and the said Bob Jamison respectfully,” that tbe word, “respectively,” was clearly meant and intended. No one could be misled by this. To take tbe indictment as .a whole, itr with reasonable certainty shows and charges that tbe one silver dollar, .two pocketknives, and the coat was tbe property of and taken from Riley, and that tbe silver coin of the value of $1.50 was the property of and taken from the said Jamison. It did not charge, and could not reasonably be understood to charge, that all of this propérty was the joint property of these two persons.

The indictment follows in substance and in effect the form laid down by Judge White in his Annotated C. C. P., and is in compliance and in accordance with our statute. The allegation that appellant took from Jamison “silver coin of the value of one dollar and fifty cents” is a sufficient description. Sims v. State, 142 S. W. 572, and authorities therein cited.

In the fifth ground of the motion for new trial appellant sets up that he was only 26 years old, unused to the trial of cases, or the procedure of the courts, and, when arrested, was confined in jail continuously since then until this trial; that he was poor and had no money to employ counsel and had no friends to do so; that he was tried on Thanksgiving Day, and the trial rushed through in- a half day, and that the jury was out only 15 or 20 minutes, and such like matters. This matter, not being presented by bill of exceptions, is not subject to review. Even if it was, the court in allowing the bill of exceptions to the overruling of the motion for new trial as to this particular matter qualified it as follows: “I had the defendant brought before me several days prior to the calling of the criminal docket, and offered to appoint an attorney to represent him. Defendant informed me that he did not desire to have an attorney appointed, as he proposed to represent himself, to which I consented. I then talked to him about his witnesses, and he informed me that he had only one witness. I had the clerk issue a subpoena for this witness, and the witness was present at the trial. The defendant did defend himself at the trial, examining the witnesses in such manner as to apparently develop the facts and making a speech to the jury in his own behalf. He impressed me as a man of intelligence, otherwise I would have insisted on furnishing him counsel. The jury received the charge at about the time set' out in the motion, and returned their verdict in fifteen or twenty minutes.” In no event was appellant entitled to a new trial on this ground.

One of appellant’s grounds in his motion for new trial is that, if the proof shows any offense at all, it shows two separate and distinct offenses, to wit, the robbery of Riley and the robbery of Jamison, and claims it was error to permit the state to show two separate and distinct offenses occurring at different times — that is, two robberies, one upon Riley and the other upon Jamison— and says that, if this testimony was admissible at all, the state ought to have been compelled to elect which offense it relied upon for conviction, and the verdict should show which offense the jury found the defendant guilty of.

Without detailing the evidence, it clearly and satisfactorily shows: That the two parties charged to have been robbed — Riley and Jamison — left Austin for Calvert, Tex., traveling together as companions; that when they got to Taylor they, together, got off the train on one side, and together walked around the train to the other side, and that while there the appellant came up to them, claimed he was an officer, and first arrested Riley, without stating what for and refusing to tell him, although demanded by Riley, and that, starting off with him, he asked Riley how much money he had, and then proceeded to run his hands into Riley’s pockets, and took therefrom $1.50 in money, two pocketknives, and then demanded that he should take off his coat, and give it to him, put it on himself, and wore it. Upon Riley refusing to do this, he forcibly took the coat off of him. That Jamison was present when all this occurred, and, as soon as appellant got through with Riley, he then at once proceeded to take Jamison, and asked him how much money he had. Jamison did not tell him, and appellant walked up to him, only a few steps away, and proceeded to run his hand into Jamison’s pocket, and then Jamison delivered to him $1.50, all the money he had, and when he proceeded to take the property from each of them, he said, in effect, if they resisted, he had something in his pocket to enforce what he said, and put his hand back to his hip pocket. That all this was done without their consent, and that they were afraid of him. That he kept them under his control, marching them about from place to place for nearly two hours. That at last they managed to slip away from him, hunted up a policeman, and informed the policeman of what had been done to them by appellant. The policeman thereupon hunted up appellant, they pointing him- out to him, and found that he had on said Riley’s coat, and also found on his person the money taken from each of these parties, and afterwards arrested appellant and put him in jail. That he afterwards gave back the coat and property to Riley and Jamison. Appellant denied the robbery of either of the parties, but claimed that he bought the coat from Riley and paid him $1.50 therefor. We think the evidence substantially shows that the robbery of both persons was one continued transaction, and in effect the same transaction.

The effect of the court’s charge is that the jury were required to believe that the appellant robbed both of said persons of the respective property described in the indictment before they could convict him, and he properly submitted the appellant’s defense that if the property was procured from either said Riley or Jamison with their consent, or if they had a reasonable doubt of it, to acquit him. Even if the evidence should be construed as establishing two separate and distinct robberies, it was clearly sufficient to establish each and both. No objection whatever was made to tbe introduction of any of the evidence. Neither was there any motion or other attempt made by the appellant to require the state to elect, and no complaint in any way until after the verdict was found and judgment rendered. The verdict was general, as follows: “We, the jury, find the defendant, O. B. Compton, guilty, and assess the penalty at five years in the state penitentiary.” The judgment merely adjudged defendant “guilty of robbery.” The penalty fixed was the lowest provided by law. Under the circumstances, in no event does the appellant show that he was entitled to a new trial. See Clark v. State, 28 Tex. App. 189, 12 S. W. 729, 19 Am. St. Rep. 817; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160; Fry v. State, 36 Tex. Cr. R. 582, 37 S. W. 741, 38 S. W. 168; Moore v. State, 33 Tex. Cr. R. 166, 25 S. W. 1120; English v. State, 29 Tex. App. 174, 15 S. W. 649; McMurtry v. State, 38 Tex. Cr. R. 524, 43 S. W. 1010.

The verdict was clearly sufficient, and could not be misunderstood. Section 907, p. 597, White’s Ann. C. C. P.

The charge of the court wherein he required the jury to find that the robbery was committed upon both persons, but the property taken was the property of each of them, naming it and the respective party charged to have been robbed, was correct under the circumstances of this case. Clark v. State, 28 Tex. App. 189, 12 S. W. 729, 19 Am. St. Rep. 817.

There being no reversible error, the judgment is affirmed.  