
    PATTERSON v. STATE.
    (No. 6169.)
    (Court of Criminal Appeals of Texas.
    May 25, 1921.)
    1. Criminal law @=1101 — Where there is but one statement for two cases tried simultaneously, court will consider record not containing statement as being before it without same.
    Where two persons are indicted separately for complicity in the same crime and are tried simultaneously and identical transcripts in each case with but one statement of facts filed, the appellate court will treat the record not containing the statement of facts as being before it without such statement, as the. record in the appellate court must be complete in each case.
    2. Criminal law @=3655(I) — Remarks of judge to jury not reversible error, in view of instructions, and where rights of accused .not prejudiced.
    Remarks of the judge to the jury before the trial of one accused of robbery that they should pay close attention to the testimony, and thereby avoid controversy among themselves and reach a verdict more speedily and satisfactorily, were not reversible error, where the court on objection instructed the jury not to consider his statement as evidence, or as tending to show guilt or innocence, and the remarks were not calculated to prejudice the rights of the accused.
    3. Criminal law @=>406(1)— Oral statement of accused, leading to finding of pistol with which offense committed, admissible.
    Under Code Or. Proc. 1911, art. 810, excluding oral statements made by the accused while under arrest unless they conduce to establish his guilt, such as finding the instrument with which the offense was committed, a statement so made by one accused of robbery, which led to the finding of the pistol claimed to have been used, was admissible.
    4. Criminal law <®=>l170(2) — Error in exclusion of evidence of no weight where same testimony given by state’s witness.
    In a prosecution for robbery, error in the exclusion of evidence as to certain exculpatory statements made by defendant at the time of his arrest was of no weight where such evidence was fully placed before the jury by the arresting officer.
    5. Criminal law <©=5426 — No error in rejection of testimony of one indicted for participation in same offense as to exculpatory statements by him similar to those of defendant.
    In a prosecution for robbery with firearms, where defendant did not testify, there was no error in the rejection of the testimony of another indicted for participation in the same offense, as to exculpatory statements made by him to the arresting officer at the time of his arrest, as he could not testify on defendant’s behalf, and the arresting officer testified as to similar statements by defendant.
    6. Criminal law <@= 1170½(6)— Question as to whether accused had been charged with robbery at former time not reversible error where court refused to permit answer and instructed jury not to consider question.
    In a prosecution for robbery with firearms, a judgment of conviction will not be set aside because defendant’s accomplice was asked if it was not true that he and defendant had both been arrested and charged with robbery with firearms at a former time, where the court refused to permit an answer and instructed the jury not to consider such question.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    E. C. Patterson was convicted of robbery with firearms, and he appeals.
    Affirmed.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was- convicted in the criminal district court of Tarrant county of the offense of robbery with firearms, and his punishment fixed at confinement in the penitentiary for seven years.

This is a companion case to that of the State of Texas v. J. M. Williams, 231 S. W. 110, recently decided by this court, and reversed for error in refusing to allow the appellant in that case to give testimony as to certain statements claimed by him to have been made to the arresting officer, which were rejected by the trial court, but by us deemed to have been material in his behalf. It appears that said Williams and this appellant were indicted separately for complicity in the same criminal transaction, and by some character of agreement between the state and said defendants they were tried simultaneously, and identical transcripts in each case are here on file, with but one statement of facts, to which, apparently under the same agreement of the attorneys in the trial court, we are referred in both cases.

Inasmuch as the matter appears without precedent, we have considered said single statement of facts in both these cases, but must decline so to do hereafter. The spirit of the law, if not its letter, requires the filing and preservation as part of the record of each case upon appeal of a complete transcript and statement of facts pertaining to said case; and, if it be permissible to consolidate and try simultaneously cases wherein there be separate indictments, yet in case of appeal the record in the appellate court must be complete in each case, or this court will be compelled to consider and treat such records as do not contain statement of facts as being before us without such statement of facts. Gumpert v. State, (No. 6163) 229 S. W. 330.

Reference is here made to what we said in our opinion in the Williams Oase, supra, as to the remarks of the court below in impaneling the jury, also with regard to what was said by the accused in connection with the pistol found by the officers, and we approve what was so said as applicable to the instant case.

Bill of exceptions No. 6 in the instant case is identical with the same bill as discussed in the opinion in the Williams Case, supra, but in following out the statements made by the trial court in his qualification to said bill, and' examining that part of the statement of facts referred to by said trial judge, we find that the matters complained of as being desired in evidence and rejected, as described in said bill of exceptions, are of no weight in the instant case, for the reason that said evidence was fully placed before the jury by the officer who arrested appellant and said Williams; said officer testifying that the statements apparently rejected by the court were later in the testimony of said officer fully narrated as having been made by this appellant.

The error for which said Williams Gase was reversed, viz. that Williams was not allowed to testify to certain statements made by him to the arresting officer after he .was in custody, is of no avail to this appellant. Under our practice Williams could not have been introduced as a witness on behalf of appellant, they being indicted for participation in the same criminal transaction and offense; and appellant has therefore no ground for complaint on this appeal, based on the rejection by the trial qourt of all or any part of Williams’ testimony, as relating to the guilt or innocence of this appellant. As stated by us above, however, it appears from the statement of facts referred to in the qualification of bill of exceptions No. 6 that the arresting officer testified fully to the statements made by this appellant after his arrest, which are substantially those offered by Williams while on the witness stand, the rejection of which was held- by us to be error on his appeal. This appellant did not take the stand or offer to testify as a witness.

By bill of exceptions No. 14 complaint is made that while Williams was on the stand testifying he was asked by the state’s attorney if it was not true that he and appellant had both been arrested and charged with robbery with firearms at a former time. Upon objection to this question the trial court promptly refused to require or permit any answer, and both verbally and in .writing instructed the jury not to consider or allude to said question so asked, as same was improper. We do not think the asking of such question presents reversible error. This court could not lay down the rule that for the mere asking of a question as to whether or not one accused of crime had not theretofore been arrested or convicted, even though the accused had not taken the witness stand, a judgment of conviction should be set aside solely because such question was asked; it appearing that it was not answered, and that the court did all in its power to prevent any injurious' effects.

We do not deem it necessary to set out the evidence, as the facts are identical with those appearing in our opinion in the Williams Case, supra, and are ample to support the verdict and judgment.

Finding no reversible error in the record, the judgment will be affirmed. 
      
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