
    COULSON v. STATE.
    (No. 9314.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.
    Rehearing Denied Nov. 18, 1925.)
    1. Robbery <&wkey;20 — Testimony of victim of robbery that object placed against his back felt, like a gun not inadmissible under indictment.
    Under indictment charging robbery by assault and violence,-testimony of victim that one of parties held something to his back which felt like a gun ‘held not inadmissible because indictment fail^l to charge that robbery was by the use of a gun or other deadly weapon.
    2. Criminal law ¡@=5537 — Testimony as to money found on accomplice, admissible to corroborate confession.
    In prosecution for robbery, testimony of officer that when he arrested alleged accomplice of accused’ the night of the robbery he found certain money on him <%eld admissible as corroborating the confession that in division of the spoils said accomplice was given that money taken from prosecuting witness as his share.
    3. Criminal law &wkey;>537 — Testimony of money found in room of alleged accomplice sh'ortly after robbery admissible.
    In prosecution for robbery, testimony as to money found in room of an alleged accomplice shortly after robbery occurred, which tended to corroborate confession introduced by state as to division of the spoils and share of said accomplice, 'held admissible.
    4. Criminal law <@=l 120(1) — Bill complaining of ruling on testimony must state sufficient facts to enable appellate court to determine if error was committed.
    Bill of exceptions, complaining of admission or rejection of testimony, must state sufficient facts in connection therewith to enable appellate court to determine from bill itself if error was committed, and court will not go to statement of facts to supplement bill unless referred thereto by trial judge.
    5. Criminal law <&wkey;l 120(6) — Exception to rejection of testimony not considered, in absence of sufficient facts in bill.
    In prosecution for robbery, exception to refusal to permit a witness to tell whether accused had told Mm motive of robbery at police station after arrest could not be consideredn in absence of sufficient facts in the bill showing its connection. ..
    6. Robbery <3=23 (3) — Testimony that alleged accomplice had spent part of a $1 bill immediately after robbery admissible.
    In prosecution for robbery, testimony that alleged accomplice had made purchases in a restaurant, which he paid for with a $1 bill shortly after robbery, held admissible to corroborate testimony as to' what his share of the spoils had been, the balance of which was found on Mm at arrest.
    7. Robbery <@=27 (5) — Charge on question of assault held proper.
    In prosecution for robbery, where some object was held against the back of the victim and his money taken from him, charge on question of assault following the statutory definition held proper under the evidence.
    8. Robbery <3=8 — Testimony-held to show robbery.
    In prosecution for robbery, testimony clearly showing that the act of fraudulently taking money from victim was without his consent, and effected by accused and those acting with him, held to show robbery.
    9. Criminal law &wkey;>829(l) — Refusal of special charge covered by main charge not erroneous.
    The refusal of a special charge which' was clearly and properly covered by the main charge is not error. .
    10. Criminal law <3=720(8), 1171(3) — Argument of county attorney held not prejudicial.
    In prosecution for robbery, argument of county attorney that(,the most .dangerous people are those who lie around town in the daytime, and at night put on their guns and hold up some workingman like defendant in this case, held legitimate deduction from the evidence, or, in any event, not prejudicial, where the minimum punishment was assessed.
    On Motion for Rehearing.
    11. Criminal law <3=459 — Testimony of victim of robbery that article held to< his back felt like a gun not objectionable as opinion.
    In prosecution for robbery, testimony of victijn that one of parties held something to his back which felt like a gun held not objectionable as an opinion, as witness had right to rely on sense of touch to determine character of weapon used.
    Commissioners’ Decision.
    Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.
    Arthur B. Coulson was convicted of robbery, and he appeals.
    Affirmed.
    J. R. Creighton, of Mineral Wells, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court- of Palo Pinto county for the offense of robbery and his punishment assessed at confinement in-.the penitentiary for five years.

The facts show that Jimmie Riggs, the prosecuting witness, on the date of the alleged offense, about 5:30 o’clock, went into a restaurant where appellant, Montgomery, and Lester Knight were, and bought a hamburger, and bought one for Montgomery and Knight, and that in paying the bill he pulled out some greenback, which was folded up, whereupon some of the boys 'said, ‘.‘Look, there, at the money he has got.” Later on that night appellant, Montgomery, and Knight stopped the prosecuting witness on the street, held something to his back, ordered him to put his hands up, and took his roll of money from him. Appellant made a confession to the witness Eubanks, in which he admitted the holding up of prosecuting witness, and also admitted that he got $11 of the money, Knight got $9, and Montgomery got $8. It was the appellant’s contention that the taking of the money was done in a spirit of fun.

This is a companion case to that of Virgil Montgomery (No. 9310) 276 S. W. 250, decided June 10, 1925, and also of the Lester Knight Case, this day decided, 277 S. W. 138. Appellant’s first bill of exception complains at the action of the trial court in permitting' the district attorney to ask the ‘witness Riggs if he had testified that one of the parties held something to his back, and asked him what it felt like, and to his answer that it felt like a gun. The objection to this testimony was that it was a conclusion of the witness, and that there was no allegation in the indictment that the robbery was' committed with a gun, and no allegation that the robbery was committed by putting the witness in fear of death or serious bodily injury. This objection is without merit. The contention that the testimony was a conclusion of the witness cannot be sustained. The witness had a right to rely on his sense of touch to enable him to determine the character of the w'eapon used, and the testimony was therefore clearly admissible, being based on one of the ordinary senses upon which a person must necessarily rely to enable him to state a fact. The objection that there was no allegation in the indictment that the robbery was by the use of a gun or other deadly weapon is equally untenable. The indictment charged the robbery as being by an assault and by violence, and, whether the placing of the gun to the prosecuting witness’ back put him in fear of death or serious bodily injury or not, it certainly constituted an assault and violence.

Bill of exception No. 3 complains that the trial court permitted the district attorney to prove by the witness Eubanks that he arrested Virgil Montgomery that night, and found some money on him, to wit, a $5 bill, and two $1 bills. This testimony was clearly admissible as corroborating the confession introduced in evidence by the state to the effect that in the division of the spoils Montgomery was given $8 of the money taken from prosecuting witness. It was the right of the state to show that Montgomery was found shortly after the robbery with part of the proceeds of the robbery in his possession, and this testimony complained of had a very strong tendency to show this fact. What has just been said also disposes of appellant’s complaint 'in his bill of exception No. 5 at the court’s action in per-, mitting the witness Eubanks to testify that he found in Knight’s room a $5 bill and four $1 bills shortly after the robbery occurred.

Bill of exception No. 7 complains because the court refused to permit the witness Eubanks to answer the following question:

“Did he (meaning the defendant) tell you in the conversation you had with him at the police station, after he was arrested, that he and Virgil Montgomery and Lester Knight held up Jim Riggs just to have some fun with him?”

The bill shows that the state objected to this question, and that the witness was not permitted to answer, and tlfat if he had been permitted to answer the question he would have stated “that the defendant did not make said statement to him at that particular time but that a little later and in the same conversation the defendant did state to him that they were just having some fun with Jim Riggs when they took his money from him.” This is all the bill contains. It states no facts which would enable us to determina that the court erred in refusing to permit ths witness to be asked this question. The rule has been so often stated as to make it unnecessary to repeat that to be available to appellant on appeal a bill complaining of the admission or rejection of testimony must state sufficient facts in connection with its admission or rejection,to enable this court to determine 'from the bill itself whether or not error was committed. This court will not ordinarily go to the statement of facts for the purpose of supplementing- a bill, unless reference to some particular part thereof is made by the trial judge, which is not done in this .case. The following very recent cases on this question are clearly authority for the proposition that the bill under discussion is insufficient: Mitner v. State (Tex. Cr. App.) 273 S. W. 565; Jones v. State (Tex. Cr. App.) 273 S. W. 259; Robbins v. State (Tex. Cr. App.) 272 S. W. 175.

Bills of exception 8 and 9 raise the same question that has been decided in our discussion of bills 3 and 5, and the same is without merit.

Bill of exception 10 complains at the court’s action in permitting the witness West to testify that Virgil Montgomery came to the American Café shortly after the robbery and purchased some cigarettes, a cup of coffee, and a ham sandwich, paying for the same' with a $1 bill, and receiving 60 cents- in change. This testimony is admissible. The state had proven that the appellant confessed to the fact that Montgomery had received $8 of the money taken from prosecuting witness. Appellant in his own testimony admitted that Montgomery got part of the proceeds of the robbery. The state had a right to show as corroborating testimony that .Montgomery, immediately after the robbery, was in possession of the $8 which the witness Eubanks testified that appellant told him that Montgomery receivéd as his part of the spoils. In doing this the state had a right to prove that. Montgomery was found with $7 in his possession, and to also show that he had changed a $1 bill immediately after the robbery occurred.

The bill of exception complaining at the charge of the court on the question of assault is without merit. The charge complained of follows the statutory definition of an assault, and is in accordance with the forms approved by this court. Appellant also contends that the charge was wrong for the reason that there is no evidence that any violence was used toward the prosecuting witness, or that the prosecuting witness was injured, or that any injury was intended by the defendant or those acting with him. This contention cannot be sustained. The testimony in this case clearly shows that the act was without the consent of prosecuting witness, and his property was fraudulently taken by the defendant and those acting with him. Under this state of the record it has always been held that this constitutes robbery. Tones v. State, 48 Tex. Cr. R. 369, 88 S. W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455; Williams v. State, 51 Tex. Cr. R. 364, 102 S. W. 1134, 123 Am St: Rep. 884; Keys v. State, 60 Tex. Cr. R. 279, 131 S. W. 1069; Bond v. State, 20 Tex. App. 421; Pendy v. State, 34 Tex. Cr. R. 643, 31 S. W. 647; Robinson v. State, 67 Tex. Cr. R. 79, 149 S. W. 186.

Appellant’s theory of the case was that he acted in a spirit of fun, and this was clearly and properly submitted to the jury by the court in his main charge, and no error is shown by the court’s action in refusing appellant’s special charge submitting this issue.

By bill of exception No. 13 appellant complains because the county attorney in his opening argument said:

“The most dangerous people on earth are those who lie around town in the daytime, and at night put on their guns and go out and hold up some workingihan like the defendant did in this case.”

As we understand it, this was a mere deduction that the county attorney was drawing from the testimony introduced in the case, and we think the same was legitimate. In any event, the punishment assessed was the lowest permitted by law for this offense, and therefore, if the argument was improper, it is not apparent that appellant has suffered in any way by reason thereof.

We have carefully examined each of the complaints urged by appellant, and it is our opinion that no 'error is shown in this record, and that the judgment should, therefore be in all things 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.

LATTIMORE, J.

We have considered the two points relied on by appellant in his motion. We are of opinion that it was not error to permit prosecuting witness to state that what was put against his back by appellant and his companions “felt like a gun.” There would be no question as to the right ’ of a witness under circumstances to say that what he saw “looked like a pistol.” The conclusion of the witness in one case is derived from a different sense than in the other, but, if a blind man would undertake to say by the sense of touch that a certain object felt by him was a pistol, the evidence would be admitted. The correctness of the conclusion reached when the identity of the instrument is arrived at from touching some other part of the body may not be deemed as satisfactory as when touched by the hands, but this would apply to the weight rather than to the admissibility of the testimony.

Appellant’s complaint as to our decision regarding his bill of exceptions No. 7 seems without merit, but we might add that there is a qualification attached to said bill by the learned trial judge which would leave no doubt of the correctness of our conclusion regarding same.

The motion for rehearing will be overruled. 
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