
    SPEARS v. STATE.
    (No. 6586.)
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1922.
    Rehearing Denied Feb. 8, 1922.)
    1. Criminal law <&wkey;>622(3) — No error in directing one jointly indicted to be tried first where he did not ask that other be first tried.
    Where, in a prosecution for robbery, accused, jointly indicted with Q., was granted a severance, no affidavit being filed by accused asking that G. be tried first, as provided by Vernon’s Ann. Code Or. Proc. 1916, art. 727, there was no error in the court’s direction that accused be first placed on trial.
    2. Jury <&wkey;>IIO(2), 131 (iI) — Examination by court of juror’s possible disqualification for conviction of crime not error; lack of citizenship cannot be waived.
    Where, in a prosecution for robbery, after juror was selected and sworn it was discovered he had served a term for felony, defendant having waived objection based on conviction) bringing of the juror into court to inquire if his citizenship had been restored but not before any member of jury, and returning him to serve, was not error; Vernon’s Ann. Code Or. Proc. 1916, art. 60S, requiring that that disqualification cannot be waived, though both parties consent.
    3. Criminal law 1091 (4) — Bill of exceptions must show facts making error apparent.
    Unless the bill of exceptions itself show such facts as to make apparent an error in the admission of evidence, complained of, it will be of no avail.
    4. Criminal law <&wkey;!043(2), 1059(2) — General objection and exception to evidence presents no error on appeal.
    A general objection and exception to evidence does not present error so that it can be considered on appeal.
    5. Criminal law <&wkey;ll69(2) — No contradiction being made of identification of stolen property, admission of evidence of identification out of court harmless.
    In a prosecution for robbery, where D., the owner, identified, while a witness, the stolen property without contradiction, proof that D. identified his property outside of the courtroom, not in the accused’s presence, was harmless.
    6. Criminal law &wkey;>69l, 697 — Accused’s right to objection and exception should not be denied.
    The right of an accused to make objections to evidence and take his exception to supposedly erroneous matter should not be denied. On Motion for Rehearing.
    7. Criminal law <®=^698(l) —Whether secondary evidence of contents of letter identified by accused as his was harmful.was for jury.
    In a prosecution for robbery, where defendant identified a letter he had written to G., and did not avail himself by objection to secondary evidence of the letter’s contents, whether evidence of the letter’s statements to G. to come to El Paso, that there was easy money there, was harmful to defendant was for jury.
    8. Criminal law <@=>351(3), 369(2) — Evidence of flight admissible, although showing commission of other crime.
    In a prosecution for robbery, evidence of flight was admissible although the circumstances reflected the commission of another crime.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Robert Spears was convicted of robbery with firearms, and he appeals.
    Affirmed.
    Hudspeth, "Wallace & Harper, of El Paso;, for appellant.
    O. L. Vowell, of El Paso, and R. G. Sto-rey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

■ Appellant was convicted in the district court of El Paso county of robbery with firearms, and his punishment fixed at 15 years in the penitentiary.

Appellant and George Gunther were jointly indicted herein. There appears in the record a bill of exceptions to the action of the trial court in granting a severance. The contention seems to be based solely upon the ground that Gunther, codefendant of appellant, did not demand such severance We need not set out at length the recitals of the bill. The court appointed Hon. L. A. Dale to represent Gunther, who was without counsel. This being a capital case, it would appear to be the duty of the court to make some such appointment. Brotherton v. State, 30 Tex. App. 369, 17 S. W. 932; Brown v. State, 52 Tex. Cr. R. 267, 106 S. W. 368. The counsel so appointed for Gunther demanded a severance which was granted, and thereafter the court directed that appellant be placed first on trial. There seems to have been no affidavit made by appellant asking that Gunther be first tried as is provided by article 727, Vernon’s C. C. P. We do not think any error is shown in the matter.

After the juror Cole had been selected and sworn herein, it was discovered that he had been convicted of a felony, and had served a term in the penitentiary. The juror was brought-before the .court and asked if he had been pardoned and his citizenship restored, to which he stated that he had, and he was then returned to the jury room and served as a juror herein. We do not think the objection of appellant to the action of the court in bringing said juror into open court and ascertaining said matters, was well taken. True, appellant offered to waive any objection based on said conviction, but it is statutory that the disqualification resulting from a felony conviction without subsequent pardon cannot be waived. Article 695, Vernon’s C. C. P.; Rice v. State, 52 Tex. Cr. R. 359, 107 S. W. 832. The examination of said juror relative to this matter was not had in the presence of any other member of the jury or of the panel, and we are unable to discern possible injury to appellant, or ground of complaint.

We have carefully examined appellant’s bill of exceptions No. 3, complaining that the witness Gere was allowed to testify that he first saw appellant in Albuquerque, N. M., January 28, 1921, and that he saw George Gunther and Mrs. Gregory, mother of appellant, in jail in Albuquerque on said occasion. There appear approximately two pages of the recitals of grounds of objection to the above testimony, but nowhere is there any statement of such facts as will enable us to know that the evidence was objectionable. The statement of his ground of objection by appellant’s attorney does not establish the truth of the matters so stated. As far as we can leam from said bill, appellant may have been arrested on said occasion £0r the robbery herein, and there may be abundant testimony in the record making material the fact that the witness Gore saw Gunther and Mrs. Gregory in jail on said occasion. Unless the bill itself shows such facts as make apparent the error complained of, it will be of no avail.

Appellant’s bill of exceptions No. 4 consists of two pages of questions and answers, many of which are clearly material, and to all of which a general objection and exception are addressed. In this condition the bill presents no error, so that same can be considered by us, but, in passing, we observe that it might be very material for the state to show when and where the alleged stolen property was found, and that Gunther, alleged coprincipal . with, appellant, was present and disclosing its whereabouts when same was discovered.

Complaint is made of the fact that the alleged injured party and owner of the alleged stolen property, outside of the courtroom, identified as his property the watch and stick pin taken from him at the time of the alleged robbery herein. Dixon, the alleged owner, was a witness on this trial. As far as the bill discloses, he identified, while a witness, without any contradiction or dispute, said property. The trial court’s qualification to this bill sets forth that, by appellant’s cross-examination of Mr. Dixon, and by the testimony of certain other witnesses, appellant sought to discredit Dixon and to show contradictory statements on his part. There being no dispute over the identity of said property, proof of such fact would be wholly harmless, if inadmissible. It is true that, in the absence of other evidence of ownership, such fact cannot be proven by testimony of ex parte identification of the property by the owner out of the presence and hearing of the accused. Anderson v. State, 14 Tex. App. 49; Cannada v. State, 29 Tex. App. 537, 16 S. W. 341. The bill complaining of this matter shows no error.

Appellant’s bill of exceptions No. 6 consists of two pages of questions and answers, a part or all of the testimony of Mrs. Ella Gregory, the mother of appellant. We have held any bill of exceptions in this form to be not in conformity with the rules, and have refused to consider same. In stating his ground of objection to this testimony, appellant’s counsel says that he was not permitted to make specific objections to the various questions propounded, but was given to understand that he could make any objections that were legal after the testimony was all introduced, and he thereupon proceeds to state many and various grounds of objection. The bill is approved by the trial court without explanation. We do not feel inclined to set the seal of approval upon such proceedings. The complaints of appellant are directed at no particular question, as should be done, but are stated in bulk at the conclusion of the testimony. We doubt the power of the trial courts to deny to the accused the right to state his objection to any proceeding; but, the appellant having taken no bill of exceptions to the denial of such right, the specific question is not before us. Nor do we believe this court called upon to consider objections stated in general terms as being to all of the testimony quoted in question and answer form upon certain subjects appearing in the evidence of a certain witness. The practice in regard to these matters is well understood, and should be adhered to. If the appellant does not care to insist upon hjs right to interpose objections to questions asked, he at least in stating his objections, must address them to particular questions. In view of the fact that this matter is here in this condition apparently for tlie first tune, we have gone through the testimony set out in said bill of exceptions as well as the objections stated in bulk. We think it proper in a case such as the one before us to show that .the witness Ella Gregory, mother of appellant, and a witness on his behalf, had been arrested and charged with crime imputing moral turpitude; that appellant and his codefendant, Gunther, left Texas together, and in a stolen automobile; that the witness was with them ; that the party were arrested near a point in New Mexico where the alleged stolen property was afterward found. The insignificant details connected with these main facts, which appear in many of the questions, would not seem of any injury to appellant.

We find nothing in the cross-examination of appellant as set forth in bill of exceptions No. 7 which would present any reversible error. The fact that Gunther, codefendant with appellant, was in El Paso in response to letters written him by appellant, would seem material, as also the contents of letters written by appellant to Gunther telling him of conditions in El Paso, and that there was easy money out there.

Appellant’s bill of exceptions No. 8 is in substantially the same condition as his bill No. 6, except that we are here confronted with five pages of questions and answers in the cross-examination of appellant. Again appellant’s counsel states that he was not allowed to make objection as the trial proceeded, and again he took no bill of exceptions to the refusal of the court to allow him to make such objection, and again we are confronted by objections stated in bulk at the conclusion of the cross-examination. While it is true that the time of courts and juries should not be taken up with frivolous objections — a matter ' which will not often occur — still it is difficult to conceive that a situation could come about in which the accused could properly be denied his right to make his objection, and take his exception when the supposedly erroneous matter arises. Such a situation has not been brought to the attention of this court before, and we trust will not again. If it does the court will be under the necessity of reversing the case without having to laboriously search through page after page of questions and answers in order to ascertain if any of them show sufficient basis for objections made in bulk at the conclusion of the testimony of a witness apparently in accord with the direction of the trial court. To some extent this principle is discussed in Wéige v. State, 81 Tex. Or. R. 480, 196 S. W. 524. Considering said bill, we observe that 'the theory of the state was that appellant and Gunther were acting together in the instant case and others. Appellant denied all complicity with Gunther. It was proper to show that, within a short time after Gunther came to El Paso, and within two weeks after the alleged robbery herein, Gunther and appellant fled from the state in a valuable automobile, and that same was stolen, and thatNthe mother of appellant went with them. The mass of cross-examination set out in said bill, through which we have carefully gone, seems to us to contain no matter of injury to appellant.

Mr. Dixon swore positively that appellant and Gunther held him up at the point of a pistol and took from him his watch and pin, and then drove away in his car. The car was recovered the next morning. The watch and pin were found in a can about 14 miles from Albuquerque, N. M., at a point near where appellant, his mother, and Gunther were arrested in said stolen car by certain policemen.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

This court’s only purpose in what may he said regarding the procedure had in any case is that its ruling in the particular case may he understood, and that such procedure, if erroneous, may be avoided in future trials of the same or other cases. We tried to say in our opinion herein that the accused has a right to be heard by counsel to present his objection to any proceeding had on his trial, and that he may not be compelled to wait until a witness giving objectionable evidence has finished his testimony before presenting to the court his objection to the various matters in such examination. We do not think the trial courts likely to attempt to put counsel in jail for contempt whose only offense is that he has offered to make his objection to supposed errors when committed. In the instant case we did consider the objections made at the conclusion of the testimony of the various witnesses.

It is insisted anew that the trial court erred in allowing the state to introduce evidence that appellant had written to George Gunther several letters, and to interrogate appellant when on the witness stand as to the contents of a letter written by him to Gunther before the latter came to El Paso. It appears from the bill that the state showed to appellant while on the witness stand a letter written by him, and asked him if he did not write same to George Gunther, to which appellant replied, “Yes.” He was then asked if 'in that letter he did not tell Gunther there was easy money out here, and to come on out. Appellant answered that he did, but that he did not refer to El Paso, but to Old Mexico. He was then asked if he did not write Gunther to come out here, and they would go over to Juarez and hold them up, which was denied by appellant.

The state’s theory throughout was that, after Gunther came to El Paso at appellant’s solicitation, he and appellant engaged in joint theft enterprises We see no objection to the evidence. Whether appellant’s statement to Gunther that there was easy money out here was susceptible of a construction hurtful to him was a question for the jury. Appellant was -permitted to make his explanation, which was also for the consideration of the jury. Appellant denied telling Gunther if he would come out they would go over to Juarez and hold them up. If this was not in the letter it could have been easily demonstrated by an exhibition of same to the jury. Appellant does not seem to have sought to avail himself of such privilege. No objection was made that the questions of the state called for secondary evidence of the contents of a letter. The principle involved is not akin to that which rejects evidence of a separate and disconnected crime, such as was referred to in Watson v. State, 88 Tex. Cr. R. 227, 225 S. W. 754. We think the principle rather applicable to prior acts and declarations of persons engaging with a common design in crime. Blain v. State, 33 Tex. Cr. R. 247, 26 S. W. 63; Baker v. State, 45 Tex. Cr. R. 392, 77 S. W. 618; Smith v. State, 48 Tex. Cr. R. 241, 89 S. W. 817; White v. State, 60 Tex. Cr. R. 563, 132 S. W. 790.

We have also carefully considered what is said by appellant in his motion for rehearing in regard to the matters complained of in bill of exceptions No. 8. Appellant’s objection as set out in this bill of exceptions was to no question or. answer but appears to be stated thus;

“The defendant now urges the objection that all of said testimony other than that which shows that he was under indictment in the district court, for the purpose of affecting his credibility as a witness, was inadmissible, and especially that portion of said testimony which tended to show that the defendant was not only under indictment charged with aiding in conveying a stolen car from the state of Texas to New Mexico, but was more than likely guilty of said offense, it being an entirely different transaction for which he was on trial, was wholly inadmissible for any purpose,” etc.

It does not require argument to make it clear that an objection such as this contained in a bill of exceptions, dnd referring to evidence set out in said bill covering five pages of questions and answers, is not in form as required by the rules. We have again reviewed the facts as same appear in said bill of exceptions, in an effort to give to appellant the benefit of any objection, but are not able to conclude that any of said evidence was inadmissible. Appellant was charged in the instant case with robbery, it being claimed by the state that part of the property taken by him and Gunther on the occasion in question was an automobile. Appellant denied positively that he was with Gunther, and participated in theft or robbery with him. The evidence set out in said bill of exceptions shows that appellant was under indictment for sundry other felonies, shows when and where he had been arrested, and .when and how he fled from the state of Texas. We are unable to find anything in said cross-examination which does not appear to be within the rules. Evidence of ilight is always admissible. The fact that such flight was in a fine car, and with the man charged to be his coactor, in the instant robbery, would not seem to be objectionable. The fact that circumstances are in evidence connected with the flight of appellant which would seem to reflect the commission of another crime has often been held not to render such circumstances inadmissible.

Appellant complains of the fact that we did not fully set forth the grounds of his bill of exceptions No. 1. Said bill consisted of a lengthy recitation of matters which seem to us to present no valid ground of objection. It was recited therein that appellant and George Gunther were jointly indicted, and that when the case was called for trial the lower court asked Gunther if he desired a severance, and that Gunther replied that he did not, and that the trial court then requested some attorney to act as attorney for Gunther, and for reasons stated such attorney asked to be excused, and that thereupon the court asked still another attorney to act for said Gunther, and that said other attorney, for reasons stated, also asked to be excused, and that the court then appointed Hon. E. A. Dale, who accepted such aijpointment and requested a severance on behalf of his client. We could see no good reason for setting forth the various matters contained in the bill of exceptions relating to statements made by the various attorneys as to their reasons for not accepting the appointment of the court and for not representing Gunther. Just what ground of any claim for injury to appellant appeared in any of the matters set up in bill of exceptions No. 1 was not perceptible to us. If it was that appellant desired to use Gunther as a witness in his behalf, he had the right to make an affidavit for severance himself, and ask that Gunther be put upon trial upon a statement of his belief that Gunther would be acquitted. If no severance had been had, and Gunther had declined to take the witness stand for any reason satisfactory to him, appellant could not have used him as a witness, and we see no ground of complaint.

Being unable to agree with appellant in his contentions, the motion for rehearing will be overruled. 
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