
    PEARSON v. STATE.
    (No. 4108.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.
    Rehearing Denied June 23, 1916.)
    1. Criminal Law <&wkey;875(4) — Verdict — Motion in Arrest.
    Where no objection was made to the verdict when rendered or to rendition of judgment on the verdict, but was first raised on a motion in arrest of judgment, the misspelling of the word “years” in the verdict, otherwise perfect, could not vitiate it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2090; Dec. Dig. &wkey;>875(4).]
    2. Criminal Law &wkey;338(l) — Evidence—Admissibility.
    In a prosecution for robbery of whisky, testimony of a witness that on several occasions one of the parties robbed had passed through the county with a wagonload of whisky, and that he was unlawfully introducing it into Oklahoma, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 755, 756, 787, 788, 801; Dec. Dig. &wkey;>338(l).]
    3. Criminal Law <&wkey;>419, 420(10) — Evidence —Admissibility—Hearsay.
    In a prosecution for robbery of whisky, testimony of a witness that she had heard defendant say that there was more whisky in a box from which she had seen him take two quarts of alcohol, and of a conversation which she had heard defendant have with a veterinary doctor, were inadmissible as hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983; Dee. Dig. <$=3419, 420(10).]
    4. Criminal Law <&wkey;603(ll) — Application foe Continuance — Diligence.
    Where in her affidavit an absent witness whose testimony is assigned as a ground for continuance, does not swear that she was ever subpoenaed, and it does not appear -that she was not able to appear on the day following the application for continuance, no diligence was shown.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 1359, 1360; Dec. Dig4. &wkey;> 603(11).]
    5. Criminal Law <&wkey;595(2) — Continuance.
    In a prosecution for robbery of whisky, where the only admissible testimony of an absent witness was that defendant the day before the robbery had taken two bottles of alcohol out of a box in her presence, the refusal of the court to grant a continuance was not error, since the fact was immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. &wkey;595(2).]
    6. Criminal Law <$=31169(1) — Harmless Error — Evidence—Value of Property Taken.
    • In an indictment for robbery, it is not necessary to allege the value of the property taken, and it not affecting the penalty, error in the admission of testimony as to the value was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. <&wkey;>1169(l).]
    7. Criminal Law >&wkey;1122(6) — Appeal—Instructions.
    Where it does not appear that requested instructions were presented to the judge at the time required by the statute, they will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2945; Dec. Dig. <&wkey;1122(6).]
    8. Robbery <$=326 — Instructions.
    In a prosecution for robbery in taking whis-ky by force under pretense that accused was a deputy sheriff, refusal of requested peremptory instructions, for acquittal, that the testimony was insufficient to establish the offense alleged, but, if any, swindling, and to acquit, was not error.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 37; Dee. Dig. &wkey;>26.]
    9. Criminal Law <&wkey;814(17) — Appeal and Error — Review — Instructions — Circumstantial Evidence.
    In a prosecution for robbery, as the robbery occurred in ordering persons robbed away from the wagon at point of a pistol, and taking charge of the wagon containing the whisky, shown by positive testimony, and not in coming back later, refusal to charge on circumstantial evidence was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979; Dec. Dig. <&wkey;> 814(17).]
    10. Criminal Law <&wkey;730(16) — Trial—Arguments of Counsel.
    Where the court instructed the jury to disregard improper arguments of the county attorney, and in his qualification shows that the argument was provoked by argument of appellant’s attorneys, there was no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <©=3730(16).]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Mat Pearson was convicted of robbery with firearms and he appeals.
    Affirmed.
    W. F. Weeks, of Wichita Falls, W. W. Cook, of Montague, and W. W. Alcorn, of Bowie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery with firearms, and his punishment assessed at five years in the penitentiary, the lowest authorized by law.

The indictment is in strict accordance with the statute, and in the exact form laid down in 2 Branch’s Ann. P. C. § 2380, page 1300, and is good against all of appellant’s objections thereto. See the authorities cited by Mr. Branch, page 1301.

The verdict of the jury was;

“We, the jury, find the defendant, Mat Pearson, guilty as charged in the indictment and assess his penalty at five yeas confinement in the penitentiary.”

As seen, the verdict is in every way perfect, except the spelling of the word years, the r being left out. No objection to the verdict at the time it was rendered was made, nor to the rendition of the judgment, at the time, assessing his punishment at five years in the penitentiary in accordance with the verdict. It was first thereafter raised when he filed a motion in arrest of judgment on that account. The charge of the court may, and should, be looked to in aid of the verdict. 1 Branch’s Ann. P. O. 332, for cases. The charge told the jury in the first paragraph that the punishment might be death or confinement in the penitentiary for any term of years not less than five. Again, in submitting the ease to them for a finding, he told them that if they found him guilty, to assess his punishment at death or confinement in the penitentiary for any term not less than five years. From the charge and the verdict, no one could possibly reach any other reasonable conclusion than that the jury intended and actually assessed his punishment at five years in the penitentiary. That they misspelled the word years as yeas under no circumstances could vitiate the verdict.

The testimony clearly showed this state of fact: About 8 o’clock on the night of October 13, 1915, appellant tried to hire Mr. Manly who ran a service automobile, to drive him out that night 'two or three miles in the country. Manly asked him what he was going to do out there. Appellant replied that it was none of his business; that he would pay him for it. Manly then told him he would not go without knowing what he was going to do out there. After some further parleying, appellant told him that there was going to be some bootleggers through the country who were going to camp out there for the night, and he wanted to go out there and get the whisky; that he was going to get it. He said “We’ll hold them up and get it.” That he was going to play sheriff and tell them that he came after the whisky. He also told Manly then how much whisky there would be — a wagonload, 19 or 20 cases. Manly refused his services. Appellant then procured Mr. Antrim to haul him out there in his (Antrim’s) automobile, agreeing with Antrim where he could be picked up after he started. Antrim picked him up at the place agreed upon, and also another man, whom Antrim did not know, and who was not identified. Antrim hauled appellant and this man out just past where Charles Hare and George Collins were camped, about two miles out of Nocona, with a wagonload of whisky. After passing them, he stopped, turned around, and went back opposite the wagon, where Hare and Collins had gone to bed. Appellant and his companion got out of the automobile, went to the wagon where these persons had gone to bed, and appellant drew and presented his pistol to them, ordered them up and out of the wagon and into the automobile, with which they complied. He asked them what they had in the wagon, and Hare told him 19 cases of whisky. Appellant falsely told them that he was the sheriff of the county, and intended to take them to Montague, the county seat, that night. Hare, the owner of the liquor, and Collins, too, tried to get him to let them hitch up their team to the wagbn and take it hack into the town of Nocona with them. This was on their direct route to Montague. He refused to permit this, but told him he would himself get a man to put in charge of it, and immediately did, going a short distance and getting another man, not identified, who evidently was one of his pals, and put him in charge of the wagon and team and liquor. Appellant then, with his companion, after forcing Hare and Collins into the automobile, as stated, got in and ordered Mr. An-trim to drive them to a certain point, which was a mile or more beyond Nocona, towards Montague, passing through Nocona in a circuitous route to prevent being seen, and there had Antrim to stop his automobile, claiming that it had broken down. He then ordered Hare and Collins out of the automobile. He then told them that probably the county attorney would not prosecute them even if he took them to Montague, and that he had concluded if they would go on — beat it and say nothing about the matter — he would turn them loose. They promised, and he turned them loose. On his way back, at their instance, he had them hauled back a part of the way to Nocona. After Hare and Collins got to Nocona, they proceeded on foot to get their loaded wagon and team that night. Before reaching the point where they had been robbed, they met appellant coming back in the automobile from the direction where they had camped, and saw then either the whole or at least - a part of said cases of liquor in the automobile, and appellant then told them that he had left them a little package. After thus meeting appellant, and before reaching where they had camped, they met their wagon and team and the man whom appellant had placed in charge of it, but all of the liquor had been taken. Antrim hauled appellant and his companion and the liquor they had placed in the automobile back to appellant’s barn, where they that night secreted said cases of liquor. Some time the next evening the officers searched appellant’s barn, but at that time found none of the cases of liquor therein. )Ve have not given all the evidence in detail. We regard it as unnecessary. Appellant did not testify. He had his wife and others to attempt to establish an alibi for him by testifying that he was at home the night of .this robbery.

Appellant has a bill of exceptions to the court’s overruling his application for a continuance. It is very brief, merely stating that the court overruled his application, “which application has been filed in this cause.” The bill does not contain the application, or any part of it. We find it in the record. It was based on the absence of said Collins, by whom he expected to prove that he (Collins) could not and would not identify appellant as the party who perpetrated said robbery. The state later produced Collins, who testified to the reverse of what appellant said he would prove by him, and he swore positively in various ways to the identity of appellant as the robber. Another absent witness was Mrs. Johnson, whom he said he had had subpoenaed, as the attached subpoena would show. No subpoena is attached to the motion showing any such thing. He also claimed that she was sick, as shown by the certificate of a doctor attached. No such certificate is attached. He alleged that she would testify that the day previous to the night of the robbery appellant brought home some whisky and set it down on the porch, where she was washing for him at his house, that a part of this was alcohol which he had secured to doctor his horse’s leg with, and that she had heard a telephone conversation by appellant with a veterinary doctor, asking whether the alcohol would blister the horse’s leg. Another absent witness, Crow, he says, he believes would testify that on several occasions said Hare passed through Montague county with a wagonload of .whisky, and that he was unlawfully introducing it into Oklahoma. This evidence by Crow would have been' wholly inadmissible. The other absent witness he claimed was Ellis, who was later • produced and testified. The court, in overruling his application for a continuance, says he tendered appellant attachments for said witnesses; that i t was about 3 o’clock in the evening at the time he overruled this motion, and it was not prol> able that the taking of testimony would begin until the next day, Saturday, nor probable that the case would be concluded before the following Monday, and that the court thought the said witnesses, who were within 9 or 10 miles from Montague, could be had before the testimony closed, and that he did not then consider testimony of the claimed witnesses material. Appellant did not avail himself of any writ of attachment offered by the court, and does not claim to have had any issued or attempted to be served. To his motion for a new trial, filed some time after the trial was concluded, he attached the affidavit of Mrs. Johnson. She does not swear therein at all that she had ever been subpoenaed as a witness in the cause, nor does she swear that she was sick at the time of the trial, or give any reason why she was not subpoenaed or was not present. She does swear that on the 12th or 13th of October, appellant “brought a box and set it down to the tub where I was washing,” and took out' two quarts of alcohol, and he said one bottle was to wash his mare’s leg with, and asked her if it would take the hair off of it. She asked who prescribed it, and he told her the veterinary doctor, and she told him to phone the doctor, which he did. That she heard appellant say there was more whisky in the box, but she did not remember just how many he said there was. It will be seen that she did not know what was in the box other than she says he took out two quarts of alcohol. What he said to her would be hearsay, and also the telephone conversation between him and the veterinary doctor would be hearsay; but outside of this, he proved by disinterested witnesses that the day before the robbery he did receive by express some liquor, and by the veterinary doctor that he had advised him to use alcohol on the sore leg of his horse, and had a conversation with him over the phone about whether or not alcohol would take the hair off the horse’s leg. Erom the whole testimony, it is clear that the alcohol and two quarts of whisky which were found in appellant’s stall the evening after the night of the robbery was the liquor that he had received through the express company the day before, and was no part of the whisky he took from Hare. In the first place, under the showing he made, he was wholly lacking in diligence in procuring Mrs. Johnson’s attendance. Even if it could be conceded that she was sick on Friday evening when he filed his application for a continuance, it is not shown, nor attempted to be shown, that she was too unwell to have attended the next day or the Monday following; and the mere fact, which seems to be all that her testimony would have been admissible for, that appellant the day before the robbery set a box down in her. presence, of which she did not know the contents, and that he took two bottles of alcohol out of it to doctor his horse with, under the circumstances of this case is of such minor importance the court was not required to grant a continuance or new trial on that account, nor would this court be justified in reversing the case.

In an indictment for robbery, it is unnecessary to allege the value of the property taken. The value does not affect the penalty. Where such an allegation is made, it should be treated as surplusage. Winston v. State, 9 Tex. App. 143; Williams v. State, 10 Tex. App. 15; Kelley v. State, 34 Tex. Cr. R. 413; 31 S. W. 174; Williams v. State, 34 Tex. Cr. R. 531, 31 S. W. 405; and many other cases. So the court committed no reversible error when it permitted Oollins to testify that the value of the liquor was $195 in Wichita county, he claiming that the value in Montague, and not Wichita, should have been proven.

Appellant requested several special charges, among them a peremptory instruction of acquittal; another, that the testimony was insufficient to establish the offense alleged, but, if any, swindling, and to acquit; another, that the offense alleged could only be committed by fraudulently taking property away from a person, and not by taking the person away from his property, and to not consider the testimony of Oollins, because it does not show, or tend to show, the offense alleged, but only that of swindling, if anything, and he requested some others unnecessary to mention. None of these charges should have been given. None of them are shown to have been presented to the judge at the time required by the statute, nor is any reason shown why they should have been given. It is merely stated that appellant requested the charge, copying it, and the court refused to give it. Clearly, under the statute, and the many decisions of this court, these matters are not presented in a way that we are required to review them, but if we could, none of them should have been given. See Ross v. State, 170 S. W. 305, and many other cases since then following that decision. Also Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878, Byrd v. State, 69 Tex. Cr. R. 35, 151 S. W. 1068, and many other cases since then following them. Clearly, under the law, no charge on circumstantial evidence was called for. Under the testimony, the robbery occurred at the time appellant threw his pistol down on Hare and Collins, commanded them to get out of the wagon and into the automobile, and he himself took charge of the whisxy and placed one of his pals in custody thereof. The robbery did not occur when appellant later came back and took, part or all of the whisky and put it in the automobile; but, even if it did, this was shown by positive testimony. Under no circumstances did the testimony call for a charge on circumstantial evidence.

The only other question raised is several complaints and bills to different short" utterances in the argument of the county at torney. There were several of these. We think it unnecessary to detail them. In most Instances, we think the county attorney was not out of the record, and had the right to argue as he did. In other instances, the court gave appellant’s instructions to the jury, where proper, to disregard the argument, and still in addition the court by his qualification shows that the argument was provoked by and called for in answer to the argument of appellant’s own attorneys. Such matters are frequently before us, as they have been always. In several .recent cases, we have discussed such matters and the rules applicable thereto, going back to many of the early decisions where the rules were laid down. We think it unnecessary to again discuss this question, but instead will refer to some of these decisions. Marshall v. State, 182 S. W. 1108; Little v. State, 178 S. W. 826; Kinney Miller v. State, 185 S. W. 29; and Judge Davidson’s concurring opinion, 45; Mooney v. State, 176 S. W. 56. It is unnecessary to collate the great number of cases along the same line.

The judgment is affirmed. 
      <§^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      ©=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     