Opinion
No. 22864.
Delivered October 11, 1944. Rehearing Denied (Without Written Opinion) November 22, 1944.
1. — Robbery by Assault — Evidence — Acquittal of Another Party.
In prosecution for robbery by assault, excluding evidence that another person, who had been separately indicted for the same offense, had been tried and acquitted, was not error.
2. — Evidence — Rule Stated.
As a general rule, upon the trial of one charged with crime, it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted.
3. — Robbery by Assault — Evidence.
Evidence held sufficient to sustain conviction for robbery by assault.
Appeal from District Court of Denton County. Hon. B. W. Boyd, Judge.
Appeal from conviction for robbery by assault; penalty, confinement in the penitentiary for five years.
Affirmed.
The opinion states the case.
W. C. Boyd, Fred H. Minor, and Brent C. Jackson, all of Denton, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Conviction is for robbery by assault, punishment being five years in the penitentiary. The indictment charged that appellant robbed Fred Crawford of $436.00.
Robert Chastain was separately indicted for the same offense. Appellant filed a motion for severance asking that Chastain be tried first. The motion was granted; Chastain was tried and acquitted, and appellant used him as a witness in the present trial.
Upon the trial appellant sought to prove the fact of Chastain's acquittal. It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Wharton's Crim. Evidence, 11 Ed. Vol. 2, p. 1216, Sec. 724; 22 C.J.S., Sec. 784, p. 1334; Giles v. State, 109 Tex.Crim. R., 4 S.W.2d 66; Bell v. State, 33 Tex.Crim. R., 25 S.W. 769; Harper v. State, 11 Tex. App. 1[ 11 Tex. Crim. 1]; Walding v. State, 135 Tex. Crim. 430, 120 S.W.2d 1052. Cited in the notes under the sections in the text books will be found many cases from other jurisdictions supporting the principle announced in the Texas cases (supra).
It is not necessary to detail the facts. If the jury had accepted the evidence presented by appellant it would have resulted in an acquittal. The State's evidence supports the verdict.
The judgment is affirmed.