
    FLORES v. STATE.
    (No. 6044.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1921.)
    1. Criminal law <&wkey;>ll53(l) — Trial court’s decision, based on sufficient, but conflicting, evidence, is binding.
    In a criminal prosecution, where the evidence was conflicting as to whether defendant was under or over 17 years of age, the trial court’s decision, based on sufficient evidence, is binding on review.
    2. Criminal law (&wkey;396(2) — Where part of declaration or transaction was introduced, remainder became admissible^.
    In a prosecution for assault with intent to rob, where defendant claimed that he merely defended himself when assaulted by complainr ing witness, who testified on cross-examination . that he had formerly accused defendant of burglarizing his store, and defendant introduced testimony of arresting officer on such former occasion as to results of his investigation, such witness’ testimony on cross-examination that a place had been dug underneath the front door of a store, was admissible on a theory that, a part of the transaction having been admitted at the instance of one party, the remainder could be introduced by the other as explanatory, under Vernon’s Ann. Code Cr. Proc. 1916, art. 811.
    3. Criminal law @=656(3) — Court’s statement as to evidence held net erroneous comment on its weight.
    Where the court permitted evidence to be given, stating he regarded it as inadmissible, no proper connection having then been shown, and because of subsequent showing it became admissible, the court’s comment was not one on the weight of evidence, forbidden by Vernon’s Ann. Code Cr. Proc. 1916, art. 787.
    4. Witnesses <&wkey;379 (2) — Confession conflicting with defendant’s testimony held admissible.
    In a prosecution for assault with intent to rob, defendant’s confession, conflicting with his testimony as to his purpose in entering complaining witness’ store, held admissible as tending to discredit his theory of shooting such witness in self-defense after being assaulted.
    5. Criminal law <&wkey;5l7(2) — Confession held admissible to contradict defendant’s testimony and describe assault.
    Where defendant was indicted for assault to rob and for murder, a confession tending to support the latter, when the state had elected the former, held admissible.
    6. Criminal law <&wkey;829(3) — Refusal of instruction on matter sufficiently covered not error.
    It was not error in a robbery case to refuse a requested charge as to intent, where such matter was sufficiently covered by the charge given.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Jose Flores was convicted of assault with intent to rob, and he appeals.
    Affirmed.
    Hat Llewellyn, of Marlin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was sentenced to confinement in the penitentiary for two years upon the conviction of assault with intent to rob. The fact that the appellant went to the country store of MeDouell, the alleged injured party, and made an assault upon him, discharging a pistol several times, is conceded. The controversy touching the facts arises about the motive which inspired the assault and the incidents attending it.

Appellant’s testimony presents several theories, all of them being opposed to the theory that the motive was robbery. From the appellant’s testimony, either of several inferences is deducible: First, that his object was to kill MeDouell; second, that his object was to obtain a pistol, which was in the possession of MeDouell, his reason for this being that MeDouell had threatened to kill the father of appellant, or to kill the appellant, and that it was his desire to disarm him; third, that his presence was with an innocent purpose, but that he was attacked by MeDouell on account of pre-existing grudge, and that in this attack MeDouell used a knife, and appellant acted in self-defense.

From the state’s theory, MeDouell kept his money in a certain grip or satchel, which was in his place of business; that this was known to the appellant; and that he fired upon MeDouell for the purpose of either killing or intimidating him, so that the money might be obtained. In support of this theory, it was shown, without dispute, that the appellant cut the satchel open and put his hand in it, but did not remove the money; his explanation being that he sought the pistol.

Whether the appellant was under or over the age of 17 years was a question submitted to the court for decision upon evidence which is conflicting. The trial court’s decision, based upon sufficient evidence, is r binding upon tbis court. Jefferson v. State, 85 Tex. Cr. R. 614, 214 S. W. 981; Linthecum v. State, 85 Tex. Cr. R. 247, 211 S. W. 456. Tbe indictment, in addition to the count charging an assault with intént to rob, contained one charging an assault with intent to murder. Allegations and the two counts related to a single transaction, and but one count was submitted to the jury. It is doubtful whether the case is one in which an election would be required. Keeler v. State, 15 Tex. App. 111; Robinson v. State, 56 Tex. Cr. R. 63, 118 S. W. 1037; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; Masterson v. State, 20 Tex. App. 574; Vernon’s Criminal Statutes, vol. 2, p. 243, note 15, and cases cited. If the contrary were true, however, the qualification of the appellant’s bill to the effect that before the appellant introduced any testimony, save by cross-esamination of the state’s witness, an election was required and made by the state to prosecute upon the charge of assault with intent to rob, would meet and overcome appellant’s complaint of failure of the court to require an election. Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; Mueller v. State, 69 Tes. Cr. R. 158, 153 S. W. 1142; Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774.

The state opened its case with the testimony of the injured party, McDouell. On cross-esamination by appellant, it was proved by the witness that he had on a former occasion accused the appellant of burglarizing his store, and had had him arrested and his house searched, but that he was discharged because of want of sufficient evidence to- convict him. The appellant introduced the testimony of Bresnaham to the effect that, when he arrested the appellant for the assault in question, he was told by the appellant that he intended to kill McDouell; that he said:

“I don’t want the son of a bitch’s money; I wanted that sis-shooter he kept in there.”

It was also proved by the same witness that on a former occasion he had arrested the appellant upon the request of McDouell for robbing his store. In this connection the witness said:

“I mad? an investigation, carried the boy home with me, and kept him all night, but found no evidence.”

On cross-esamination, the state proved by the same witness that at the time -McDouell told him of the former robbery the witness saw a place dug underneath the front door of McDouell’s store, and that the hole was not large enough to admit the entrance of any one other than a boy or a small man. This, in our opinion, did not, under the record be-r . fore us, transgress the rule inhibiting the introduction of the details of other offenses. The introduction by the appellant of evidence upon the subject of the former charge of burglary, and the fact that the witness in question (that had made the arrest) had made the investigation, rendered it competent for the state to have the witness disclose the character of his investigation to the extent that it was done, by virtue of a statutory rule permitting the introduction of parts of the same act, declaration, or transaction to explain or make fully understood the part introduced by the adversary. Code of Criminal Procedure, article 811; Vernon’s Texas Criminal Statutes, volume 2, page 759, and cases cited.

While the witness Bresnaham was testifying at the instance of the appellant, a question was asked him intending to develop the fact that he had investigated the charge of robbing the store upon a former occasion, and found no evidence to support it The trial judge, in ruling on an objection to the answer to this question, stated that he thought the evidence inadmissible, unless it could be shown that McDouell was connected with the charge, but added that he would permit the inquiry, though he regarded it inadmissible. An exception was reserved to this as a violation of the statute inhibiting the comment upon the evidence admitted. In explanation of the bill, it was shown therein that, at the time the remark was made, the record was silent touching McDouell’s connection with the former arrest. The court was not informed that the evidence connecting him therewith would be forthcoming; that the court’s statement that he regarded the evidence as inadmissible was based upon the condition mentioned; and that subsequently, when McDouell’s connection with the charge was developed, the admissibility of the evidence, became clear, and the court so informed the jury in his charge. The statute inhibits the comment by the trial judge upon the weight of evidence, but it is made his duty to determine whether it is admissible or not. Code of Criminal Procedure, article 787. As presented here, we think this statute is not violated; at least, not to the prejudice of the "appellant. The comment appears to have been ■ upon the admissibility rather than upon the weight of the evidence. Conceding that it would have been better to refrain from making the remark, we think,' considered in connection with the remainder of the record, that it was not calculated to prejudice the case of appellant. It is remarks that may be harmful alone that justify reversal under the statute mentioned. Copeney v. State, 10 Tex. App. 474; Pilgrim v. State, 59 Tex. Cr. R. 234, 128 S. W. 128; Thompson v. State, 35 Tex. Cr. R. 352, 33 S. W. 871, and other cases listed in Branch’s Ann. Tex. Penal Code, § 270.

Appellant testified in Ms own belialf, admitting that tie bad fired Ms pistol while in the store of McDouell, that he cut open the grip therein, and claimed that the shots were fired in self-defense, and that the grip was cut for the purpose of disarming McDouell. He also declared that he went in the store with an innocent purpose — that is, to buy some tobacco — and not for the purpose of hilling McDouell, and without thought of any trouble, and that it was only when McDouell attached Mm with a hnife that he began firing, and then the shots were not fired at McDouell, but in the opposite direction or over his head. Subsequently the state introduced his written confession, in which he said that McDouell had threatened the life of appellant’s father, and also threatened to hill appellant, and that he went to the store for the purpose of hilling him, and thought he had hilled him. This confession was objected to, because it supported the charge of assault with intent to murder, and was not material upon the assault with intent to rob. We thinh it was admissible as descriptive of the assault, and as contradictory to the appellant’s testimony, touching the intent with which the assault was made, and as meeting his contention that he was not an aggressor; that he made no assault, but that he. simply defended his own life against the attach which McDouell made upon him with a butcher hnife. This contention went to the vitals of the case. The state had elected to prosecute for assault with intent to rob. The court instructed the jury that if the assault was made >vith intent to hill, and not to rob, that an acquittal should result. The appellant’s testimony, if believed, went to show that he made no assault to either hill or rob. The statements in his confession conflicted with this testimony, and tended to discredit the defensive theory resulting from appellant’s testimony.

The court, at the request of the appellant, instructed that, if it was appellant’s intent to obtain the pistol from McDouell’s premises, or if they had a reasonable doubt that this was his intent or not, they should acquit him. In the main charge it was made clear that no conviction could result, except upon finding that the assault was made with the specific intent to rob, and that, if the intent was for another purpose, though the assault was made, an acquittal must follow. The language of the court’s charge was specific to a degree that precluded the necessity of giving special charges requested upon the subject.

From a careful examination of the evidence and the record, we are convinced that, in the conduct of the trial, appellant’s rights have been -fully conserved, and that no lawful ground for reversal is disclosed.

The judgment is therefore affirmed. 
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