
    HARDY v. STATE.
    (No. 6324.)
    (Court of Criminal Appeals of Texas.
    June 8, 1921.)
    I.Criminal law <§=3631 (7)— Motion to quash service of purported copy of jurors properly denied.
    Where the state exhausted a challenge in each instance of variance between the name of the juror as shown on the original venire and the officer’s return and copy, and where no service was shown on the juror drawn, defendant waived 1ns right to have such juror attached and brought in, defendant is not entítléd to have quashed the service on him of a purported copy of the jurors summoned on account of variance between the return and copy.
    2. Criminal law ©=5597(3) — Denial of a continuance on the ground of absent witness not error where result would not have been changed.
    In a prosecution for robbery, where the state contended that defendant and other ne-groes broke into a boarding car, robbing Mexicans therein, the denial of a continuance because of the absence of a witness who would testify that a few minutes before the trouble arose he saw several' Mexicans and negroes gambling, and shortly thereafter he heard a eommotion, held not error, as such evidence, if admitted, would not have resulted in a more favorable verdict for defendant, it being entirely possible gambling preceded the robbery.
    3. Criminal law ©=3365(2) — Evidence of previous robbery admissible where part of same transaction.
    Where as part of the same transaction two Mexicans in a boarding car were assaulted and robbed, and one of them escaped to an adjacent car containing more Mexicans, which was later robbed, evidence, in prosecution for the latter robbery that one of the two Mexicans in á bloody and bruised condition came to second car was admissible, being part of a continuous transaction in which defendant and his companions were acting together.
    4. Criminal law <©=5423(3) — Evidence that one victim was struck with a wrench admissible, regardless of whether defendant or confederate struck blow.
    In a prosecution for robbery, testimony that one of the victims was struck with a wrench was admissible without showing whether defendant or one of his confederates struck the blow, for the act of one was the act of all.
    5. Crimina! law <§=3365 (1) — Evidence that defendant was pointing a pistol at a witness while his companion took witness’ money admissible in prosecution for another robbery.
    In a prosecution for robbery, testimony that defendant pointed a pistol at a witness while ¿ companion took the witness’ money is admissible, over objection that it was a new and distinct offense, for it was res gestas, being part of the general transaction.
    6. Criminal law <§=>684 — Common-law rules as to rebuttal evidence do not apply in criminal cases.
    The common-law rule does not apply in criminal cases; therefore, in a prosecution for robbery, where some of the victims testified in chief, defendant cannot complain that after closing his case the others testified, on the theory that such testimony was not rebuttal under Vernon’s Ann. Code Or. Proc. 1916, art. 717, prescribing the order of trial. ’
    7. Criminal law <§=>829 (4) — Refusal of charge substantially covered was not error.
    Refusal of a requested charge covering defendant’s claim that he did not participate in the robbery was not error, being, substantially covered by a charge that, if defendant was engaged in gambling at the place of the robbery, and a dispute arose, and subsequently some other person committed the crime, in which defendant did not participate, he would not be guilty.
    
      Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Sam Hardy was convicted of robbery, and be appeals.
    Affirmed.
    I. N. Williams and J. A. Ward, both of Mt. Pleasant, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for robbery. Punishment was assessed at 12 years in the penitentiary.

Appellant filed a motion to quash the •servicé on him of the purported copy of the jurors summoned to try the case, because the officer’s return showed O. M. SJmrtUff, O'. T. Fishback, E. F. Stenson, and W. Porter, to have been summoned, and in the purported copy served on him W. Porter’s name was omitted, and the other names appeared as O. M. Shutliff, O. F. Fishback, and E. T. Stenoson. The court overruled the motion. The bill of exception presenting this matter bears the following explanation from the trial judge:

“In each instance where was a variance in the name as shown on the original venire and the officer’s return and copy, the state exhausted. a challenge, and where no service was shown on the juror drawn defendant waived his right to have the juror attached and brought in.”

There was no error in the court’s action in the particular complained of. The variance was no ground for quashing the service or the panel. It seems in this case, the state having assumed the burden of challenging such jurors, no possible injury could result. Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Thompson v. State, 19 Tex. App. 593; Melton v. State, 71 Tex. Cr. R.. 130, 158 S. W. 550.

An application for continuance on account of the absence of Olin Robertson was overruled, and appellant assigns error. The diligence was sufficient. The facts which appellant shows he expected to prove by this witness—

“is that on the night of the alleged offense, and a few minutes before the trouble arose the said witness was near the ear, and saw several Mexicans and negroes in the car, and they were gambling; that shortly thereafter the witness heard a commotion at the said car where he had seen the- parties, and at once the lights went out and he heard holloaing and saw several persons run from the said ear, where it is claimed by the state the robbery took place. That he was near to the said car and did not hear any noise like a person beating or knocking on the ear.”

The evidence in the record shows that on the night of the alleged robbery Nicholas Hernandez and five other Mexicans were occupying a boarding ear, and two other Mexicans were in another hoarding car about two car lengths away. That after the Mexicans had retired for the night appellant and his companions first went to the car occupied by the two, gained entrance to the car, made an assault on one, and the other one escaped. The wounded Mexican went to the car where the six were, and was taken in. Appellant and his confederates proceeded to that car, battered the door down, gained entrance, and assaulted the Mexicans, and robbed Hernandez and others. Three or four of the Mexicans were considerably beaten and bruised. No marks of injury were visible on any of the negroes. The testimony showed from the officers and others that the side door of the car was broken practically to splinters from blows from the outside. Appellant testified that he and his companions were gambling with the Mexicans, and that a dispute and fight arose over the game, and denied in toto the robbery.

We had occasion, in the recent case of Clowers v. State, 228 S. W. 226, to review some of the authorities relative to applications for continuances. After quoting from several cases announcing the general rules, it was said:

“If the witness Jaggears had been present in court and had testified to all the facts which appellant claims he would have sworn to, we do not believe a verdict more favorable to the appellant would have resulted.”

This statement seems to be peculiarly applicable here. The Mexicans all denied that any gambling was going on. That was only an incidental question. If the fact that all parties had been gambling was established it would not disprove a subsequent robbery charge. The application states that the witness would testify that he heard a “commotion” at the car. There is no question that a commotion of a very serious character occurred during the progress of the alleged robbery, attended by considerable noise, and the discharge of a pistol, either -during the time, or immediately preceding it. We cannot bring ourselves to believe that any injury was done appellant by the action of the court in overruling the application for continuance, or, in view of the entire record, hold any error was committed therein.

Appellant complains because the state was permitted to prove what occurred at the car where the two Mexicans were, and that one of them, in a bloody and bruised condition, came to the car where the six were. The evidence shows it to have been a continuous transaction from the time of the attack on the first car until the robbery was effected. One of the parties in the car where the six were was awakened by the beating on the other car, and roused his companions. Appellant and his companions were acting together, and it was immaterial which one committed tlie various assaults on the different Mexicans. It was a joint enterprise, in which all were participating.

Hernandez was permitted to testify over appellant’s objection that one of the negroes hit him in the head with a track wrench, which still had blood on it at the time of the trial, the objection being that it had not been shown that appellant struck him. It was Immaterial whether it was appellant or some of his confederates . who struck the blow. The act of one was the act of all, and properly provable against whichever one was on trial.

The witness Chaves was permitted to testify over objection that he saw appellant at the car where the robbery is claimed to have occurred, and that appellant was pointing a pistol at witness while some one else took his money. The objection offered was that it was a new and different offense than the one for which accused was on trial. What has been said heretofore applies equally to this assignment. It was all one and the same transaction. The development of the case disclosed the acts of the various participants, and although it may have shown the robbery of more than one party, it was res geste, and proper and permissible to prove all that appellant and his confederates did during the entire affair. Burnett v. State, 83 Tex. Cr. R. 97, 201 S. W. 409.

In making out its case in chief, the^ state used two of the Mexicans who were' present, at the time of the alleged robbery. After appellant rested his case, the state then put on the other Mexicans who were present, over the objection that it was not in rebuttal. The testimony of all these witnesses was pertinent to the issues under investigation, and there is no merit in the objection that it was not in rebuttal. The common-law rule does not apply in this state in criminal cases. Article 717, Vernon’s O. 0. P., and note on page 398.

Appellant requested the following special charge:

“You are instructed in this case that, if you find from the evidence that the defendant and others went to the camp of Nicholas Hernandez for the purpose of gambling with the Mexicans in the said camp, and did gamble with the said Mexicans, and that while so engaged in gambling a dispute arose between the Mexicans and ne-groes, and a fight ensued, and the Mexicans were beat up, and Nicholas Hernandez was assaulted; and that the defendant then ran off and did not rob the said Nicholas Hernandez, and did not aid others in robbing him, then you will find the defendant not guilty.
“And if you have a reasonable doubt as to whether the difficulty arose over a gamble game, and as to whether the defendant robbed the said Nicholas Hernandez, then you will find the defendant not guilty.”

Error was assigned because of the failure of the court to give the charge requested. When we look to the main charge of the court, we find the following:

“You are further instructed that if you believe from the evidence that this defendant, together with others, went to the place where this offense, charged in the indictment, is alleged to have occurred, and that they went there for the purpose of engaging in a gambling game, and that afterwards the defendant with such other persons and the Mexicans got into a dispute, and that afterwards some other person, other than the defendant, made an assault and robbed Nicholas Hernandez, if you find beyond a reasonable doubt that he was robbed, the defendant would not be guilty, unless you further find from the evidence beyond a reasonable doubt that the defendant was present at the time, and knowing the unlawful intent of such other person, if any, aided by acts or encouraged by words or gestures such other person who was actually engaged in the unlawful act, if any, and that such other person, with defendant, acted together in the commission of the offense, and such act was in pursuance of a common intent, and in pursuance of a previously formed design, in which the minds of all united and concurred.”

Appellant’s defense was that he did not participate in the robbery of Hernandez, if he was robbed. The issue as to whether the parties had been engaged in a gambling transaction prior to the robbery was only a collateral matter. We find the court telling the jury that, if appellant, together with others, went to the place where the robbery is alleged to have occurred for the purpose of - engaging in a gambling transaction, and that a dispute arose, and that afterwards some other person besides the appellant robbed Hernandez, that appellant could not be found guilty, unless he in some way participated in the robbery. This substantially presents to the jury the same issue incorporated in the special charge requested and it was not necessary for the court to practically repeat an instruction which had substantially been given to the jury.

Finding no error in the record, the judgment is affirmed. 
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