
    BARNES v. STATE.
    (No. 10709.)
    (Court of Criminal Appeals of Texas.
    March 2, 1927.
    Rehearing Denied April 6, 1927.)
    1. Criminal law <&wkey;>l 111 (3) — Bill of exception to admission of evidence, accepted with court’s qualification that no such testimony was received, is binding on appellant.
    Bill of exception, complaining of admission of evidence of another offense, which court declined to approve, accepted with qualification by court that no such testimony was received, is binding on appellant.
    2. Robbery <&wkey;>24(I) — Identification of defendant as person committing assault with intent to rob by prosecuting witness, who recognized voice and appearance of defendant, his former employee, held sufficient.
    Identification of defendant as person committing offense of assault with intent to rob, made by person assaulted by not only recognizing his voice, but by recognizing appearance of defendant, who was his former employee, and positively identifying him in courtroom, held, sufficient identification.
    On Motion for Rehearing.
    3. Criminal law <&wkey;>452(3) — Testimony by person assaulted identifying defendant by voice, heard while defendant was under arrest; was admissible.
    In prosecution for assault with intent to rob, testimony by person assaulted that he heard defendant talk while under arrest, and recognized his voice, and that he identified him by his' voice, was admissible.
    Appeal from District Court, Galveston County; J. C. Canty, Judge.
    Johnnie Barnes was convicted of assault with intent to rob, and he appeals.
    Affirmed.
    John H. Barbour, of Galveston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is assault with intent to rob; punishment fixed at confinement in the penitentiary for a period of ten years.

According to the testimony of the witness Bleich, he was assaulted and wounded by the appellant. Using a knife and pistol, he inflicted upon the witness several wounds. According to Bleich, the appellant had formerly been in his employ. He was well acquainted with his appearance and his voice. As Bleich was about to close his store late in the evening, the appellant, wearing a mask over a part of his face, confronted the witness, presented a pistol, and demanded that the safe be opened and money given him. Bleich told him that he did not have the combination, and therefore could not open the safe. Appellant struck Bleich several blows with a knife, each time demanding that the safe be opened. Bleich holloed “murder,” and the appellant hit him with the pistol, and said: “Give me $5 quick.” This Bleich did not have, and the appellant became frightened and fled. He was after-wards arrested and taken to the police station. Bleich saw him there, had a conversation with him, and recognized his voice and appearance. He was positive in his identification of the appellant at the trial. After the assault, Bleich was taken to the hospital and his wounds dressed.

Appellant testified in his own behalf. He introduced a woman as a witness upon whose testimony, as well as his own, the theory of alibi was presented; the claim being that at the time of the assault he was at the home of the witness in Galveston.

Appellant’s counsel prepared some bills of exceptions. The point sought to be raised by bill No. 1 is that, after the arrest of the appellant, and while he was at the police station and in custody, Bleich saw him, and heard him talk, and testified that he recognized the voice as that of the appellant. The bill is qualified with a statement to the effect that the bill was not correct in stating that the only means of identification of the defendant was by his voice, “as the witness Bleich positively identified the defendant on the trial.”

Bill No. 2, as prepared by the appellant, complains that upon the trial appellant’s witness testified that the appellant was supposed to have had some trouble at the United States National Bank. The receipt of this testimony is attacked upon the ground that it tended to show another offense which was in no way relevant. The court declined to approve the bill, stating that no such testimony was received. The' bill having been accepted with this qualification, it is binding upon the appellant.

Bill No. 3 is a complaint of the refusal of the court to instruct verdict of not guilty upon the theory that the appellant was not identified save by his voice, and that this circumstance alone was not sufficient to warrant his conviction. The court declined to approve the bill as written, stating that the voice was not the only means by which the appellant was identified by Bleich as his assailant, but that Bleich positively identified him in the courtroom, and his testimony was supported by the officer who made the arrest. Prom the statement of facts, as above indicated, it appears that the appellant had worked for Bleich, and that Bleich was well acquainted with him, knew his voice, and recognized him. Although his face was partially hidden, he recognized his appearance, and was positive upon the trial that the appellant was the offender.

The evidence is deemed sufficient, and the bills, as qualified, show no error.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Two propositions are advanced in appellant’s motion, one of them being that we erred in holding admissible the fact that appellant talked while under arrest, and a witness was permitted to testify, over objection, that he heard appellant talk and identified him by his voice. We might observe that the testimony of this witness was positive upon the proposition of identification, aside from the fact that he heard the defendant talk while under arrest. ■However, we think the fact that the witness testified that he heard appellant talk while under arrest, and recognized his voice, and that he identified him by his voice, was admissible, and we find nothing in the authorities cited by appellant holding to the contrary.

The bill of exceptions containing the complaint referred to by appellant in his other ground of the motion for rehearing was refused by the trial judge with a statement appended to the bill of exceptions to the effect that the matters set up by appellant in said bill did not occur as therein stated.

The motion for rehearing is overruled. 
      ©x^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     