Kirk v. State

1. Robbery—Indictment—Description of Money. On a trial for robbery, where the indictment described the money taken as “certain silver coins, to-wit: three silver dollars in coin of the value of three dollars, one fifty cent piece in coin of the value of fifty cents, one nickle coin of the value of five cents, and one ten cent piece of the value of ten cents.” Held: That the court will presume and hold that allegations after this form refer to money of the United States of America. 2. Judge—Comment Upon Testimony. It is the object of the code in every provision relating to that subject to prohibit the trial judge from expressing any opinion as to the weight of the testimony or the credibility of the witnesses in the presence and hearing of the jury, and upon a question as to the materiality of evidence offered by the prosecution, it is error for him to say that such evidence is highly material. 3. Impeachment of One’s Own Witness. The State has the right to impeach the testimony of her own witness where such testimony is injurious to the State. And where a witness for the State testified that a certain important suggestion was made by him, and it was to the interest of the State to show that it was made by another party, the State may, after laying the proper predicate, impeach the witness by showing that he had stated to others that such suggestion was made by the third party and not by himself. 4. Robbery—Impeaching and Supporting a Witness. On a trial for robbery, where the main State’s witness had testified, that the. defendant was the party who had robbed him, and the defense had proved the contradictory statements of the witness. Held: That the State had the right to support his testimony by showing that he had made similar statements to those testified to immediately after the transaction. 5. Deaf Witness. Where a witness who is not dumb, but is so deaf as not to be able to hear the questions asked him, it is legitimate and proper to submit the questions asked him in a manner that he can understand them—that is, in writing or printing.

This appeal is from a conviction for robbery, the punishment being assessed at ten years’ imprisonment in the penitentiary. A motion was made to quash the indictment, for insufficient description of the money alleged to have been taken, as. to kind and of what nation the money was. This motion to quash was overruled. ' The evidence shows that on the 29th day of December, 1894, F. F. Collins, the alleged injured party, was in the town of Gatesville, and, about sundown, was seen in a barroom, where he took one or more drinks of whiskey, in paying for which, he pulled out his purse, which contained a ten dollar bill and a five dollar bill and seventy-five cents in silver. Defendant, Charley Kirk, was in the barroom at the time. Collins lived some three miles from town. When he started out of the front door of the barroom to get on his horse to go home, defendant went out of the back door of the saloon. When Collins had gotten inside of the pasture gate, not far from his house, it then being some time after dark, he was assaulted and terribly beaten and robbed of his money. He reached home and it was found that he had several severe wounds upon the scalp of his head which appeared to have been made by his being struck over the head with some blunt instrument. His clothing was very bloody, and one of his pants pockets had been torn out and his purse, containing his money, was gone. He stated that the defendant had assaulted and robbed him. He also stated, to one of the witnesses, that the man who robbed him was the man he had sued. He had sued the defendant a short time before. The oificers arrested defendant that night; and got his pistol, which afterwards, upon examination, ivas found to have blood spots upon it. A piece of the wooden handle of the pistol was missing and looked like it had been recently broken. On the next morning the oificers examined defendant’s clothing, and found that his shirt had several blood stains upon it. They repaired to the scene of the robbery, to try and discover some evidences of the diificulty and try and find the portion of the pistol handle which was missing. In the meantime, between the place where the robbery had been committed and the town of Gatesville, a glove was found and picked up, and it was proved that it was of a kind similar to gloves previously worn by defendant. The locality of the scene of the robbery was thoroughly searched by the officers, and nothing found at or near the place except some horse tracks, which were measured, and these measures were after-wards applied to and fitted the tracks made by a pony owned by defendant. When the State sought to introduce proof of these horse tracks, the defendant objected that the testimony was immaterial; whereupon the court remarked, in the presence and hearing of the jury, that the testimony was of a highly material character, and defendant saved a bill of exceptions to this remark of the court. On Saturday, January 20th, 1895, the defendant and his step-brother, M. M. Wilkins, were seen in conversation in the rear of a barroom in Gatesville. This was on Saturday before the Monday on which the term of court was to commence, and during which term defendant was to be tried. On the next day, Sunday, Wilkins and Tom Smith found old man Collins’ pocket book inside the pasture and within fifty yards of the place where Collins said he had been assaulted and robbed. The theory of the State was that defendant had given this pocket book to his step-brother, on Saturday, at Gatesville, and that there was an understanding between Wilkins and Smith that they were to find it on Sunday at the place of the robbery. After finding the pocketbook, Smith and Wilkins, on that same Sunday, turned over the pocketbook to the sheriff, Hammick. At the trial the defendant called Smith as a witness to testify as to the finding of the pocket-book. On cross-examination the State sought to elicit from the witness the fact, that Wilkins first suggested that they look around for the pocket-book after they had gotten into the pasture near the scene of the robbery. Smith’s answer was of an equivocal character, at first, but finally made the statement that he himself first suggested that they look around for the pocketbook. The prosecution laid a predicate to impeach the witness, Smith, as to this matter; the defendant objected, that as to that particular matter Smith was the State’s witness, and that the State could not impeach him with regard to it. The objection was overruled, and the State was permitted to prdve, by the County Attorney, that after Smith had been brought to the court house as a witness, that he had talked to him about his testimony, and that Smith told him in that conversation, that, after he and Wilkins had gotten into the pasture, near the scene of the robbery, Wilkins had said to him: “Let’s look around and see if we can’t find the pocket-book.” An exception was reserved to this testimony. The defendant having proved that the main State’s witness, Collins, had made statements contradictory of those testified to by him on the trial, the State was permitted to prove, over objection of defendant, that just after the transaction, Collins had stated to other parties that the occurrence had taken place in the same manner as he had testified, as a witness, that it had occurred. The witness Collins, though not a dumb man, was so deaf that he was hardly able to hear anything, and the court finally permitted the questions propounded to him to be printed and submitted to him to answer. Defendant saved a bill of exceptions to this method of examining the witness. Defendant also saved a bill of exceptions to the remarks of the prosecuting officer, in his closing argument to the jury, to-wit: “When the vigilant McClelland and Quesenberry had aroused the defendant from his lethargy into which he had been plunged for a whole minute, and told him that old man Collins had been robbed, he threw up his hands and said: ‘Now, my God, boys, if you accuse me of this, I can show you where I have been every minute of this evening.’ Has he told you where he was between the hours of sundown and a half an hour after dark?” the reason of the exception being, as assigned by defendant’s counsel, because the law prohibits the District Attorney from commenting on the defendant’s failure to testify.