
    RUTLEDGE v. STATE.
    (No. 7217.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    1. Witnesses &wkey;392(I) — Refusal to deliver writing used by prosecuting attorney in cross-examination to defendant’s counsel for use in redirect examination held error.
    Where the prosecuting attorney, during the cross-examination of a witness for the defendant, produced a writing which the witness testified had been signed by her a few days subsequent to the date of the offense, and the prosecuting attorney thereafter read or purported to read certain questions and answers which tended to refute the truth of her testimony upon the trial, the refusal to deliver the writing to defendant’s counsel to enable him to further question the witness with reference . to the matter contained in her testimony held error.
    2. Indictment and information <&wkey;l25(39)— Indictment charging robbery by assault and by the uSe of a deadly weapon not duplicitous.
    An indictment charging robbery by assault and by the use of a deadly weapon is not duplicitous.
    3. Criminal law &wkey;>796 — Court not required to charge that punishment for robbery with firearms is death or might be death.
    In a prosecution under an indictment charging robbery by assault and by the use of a deadly weapon, it is not necessary for the court to instruct the jury that the punishment for robbery with firearms is death or might be death.
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    T. R. (Rutledge was convicted of an assault to rob, and he appeals.
    Reversed and remanded.
    Percy Spencer, of Lubbock, for appellant.
    W. A. Keeling, Att'y. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for assault to rob; punishment fixed at confinement ini the penitentiary for a period of five, years.

The evidence is circumstantial. Hughes, the injured party, while riding in his automobile in the nighttime, and in the act of passing some persons who were apparently working on an automobile on' the side of the road, was attacked by them. They wore masks, exhibited firearms, and commanded Hughes to stop. He fled in his car, and fired upon one of them, who fell in his tracks. Later in the night the car of the assailants was traced to a point near which the dead body of a man named Shirley was found recently buried. It was the theory,, of the state that Shirley was shot by Hughes, and that appellant was one of Shirley’s eomp¿nions in the attempt to rob Hughes. On the following day the automobile of the appellant vtas found on á street in the town of Post. There were indications that it had been washed, and there were remnants of blood upon it. It was appellant’s theory that his car had been used without his knowledge or consent, and was probably used in committing the offense, but that he was not one of the offenders. He testified to facts supporting this theory, and so did the wife. Both of them declared that he was not at home on the night upon which the assault took place. His car was a Ford automobile, and there was evidence that he was in the habit of leaving the key in the car, and that it was frequently used by other persons. Combating this theory the state introduced some members of a family named Nickens, who were door ■ neighbors of the appellant; Charles Nickens testified that on the morning after the offense he saw the appellant at his home washing his car. Mrs. Mary Nickens gave like testimony. Appellant admitted that he washed his automobile, and said that, after spending the night away, he returned to his home, and) on hearing of the attempt to rob Hughes,-and observing that some one had used his car,, and fearing that suspicion might fall upon him, he endeavored to wash' the evidence of the use off of the car.

Appellant called as a witness Hattie Nickens, another member of the same family that was used by the state. She was a young lady 18 years of age. She testified that during the night on which the assault occurred she heard two persons come to the home of the appellant and call for him. From her testimony we understand that they came in an automobile and left on foot. This testimony tended to support appellant’s theory that his car had been used by some, one else, and that he was- not at home on the night in question. On cross-examination of this witness, state’s counsel produced a writing which she testified had been signed by her a few days subsequent to the date of the offense. The writing was exhibited to her, and her signature was identified by her. From this writing the state’s counsel read or purported to read certain questions and answers which tended to refute the truth of her testimony upon the trial. Counsel for appellant requested that the writing used be delivered to him for the purpose of further questioning the witness with reference to the matter contained in her testimony. This was refused. In his qualification, the court said that the district attorney showed the writing to the witness, and that appellant’s counsel requested to see the entire statement, but that the district attorney stated that it contained testimony other than that inquired about.

The legal question presented appears to be identical with that which was before this court in the case of Green v. State, 53 Tex. Cr. R. 492, 110 S. W. 920, 22 L. R. A. (N. S.) 706. In writing the opinion Judge Ramsey, of this court, quoted liberally from-the case of State v. Bacon, 41 Vt. 526, 98 Am. Dec. 616, in which quotation are found many references to decisions and text-books. Upon reasons fully stated by Judge Ramsey in the Green Case, this court reached the conclusion that, under the facts then before it, there was error in refusing the request of the accused that he be permitted to examine the paper which was used by the state’s counsel for the purpose of refreshing the memory of the witness. The reasoning, principles, and facts upon which the conclusion stated is based we conceive to be in no material sense different from those which control the instant case. Green’s Case, supra, is reported in 22 L. R. A. (N. S.) 706. In the notes it is stated:

“The propriety of allowing adverse party to inspect, for the purpose of cross-examination, any memorandum used by a witness to refresh his memory upon the matters as to which he is testifying, appears to be universally conceded by the courts.”

Taking note of the exceptions and modifications of the rule, we believe that there is nothing in the instant case which takes it out of the general rule. In the case of Jones v. State, 85 Tex. Cr. R. 547, 214 S. W. 322, we held that, as qualified, the bill revealed no error. The court’s qualification revealed, however, that the accused and his counsel had full opportunity to examine the document in question. In Kirkland’s Case, 86 Tex. Cr. R. 595, 218 S. W. 367, the procedure was practically identical with that in the instant case. We believe that, under the rule stated in Green’s Case, supra, the learned trial judge in the instant ease was in error in refusing to require that the appellant be furnished the memorandum which was used by the counsel for the state and the witness, and upon which, in part, her testimony on cross-examination was based.

An indictment charging robbery by assault and by the use of a deadly weapon is not duplicitous. Crouch v. State, 87 Tex. Cr. R. 115, 219 S. W. 1099. On another trial of the instant case it is .deemed unnecessary that the court should'instruct the jury that the punishment^ for rbbbery with firearms was death or might be death.

Because of the error pointed out, the judgment is reversed, and the cause remanded. 
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