27 Tex. Ct. App. 608 | Tex. App. | 1889
This is a conviction for robbery. The indict • ment charges that appellant "did then and there, in and upon the body of W. H. Flippin, make an assault, and did then and there by said assault and by force and violence to the said W. H. Flippin, in fear of life and bodily injury, fraudulently and without the consent of the said W. H. Flippin, take from the person and possession of the said W. H. Flippin, who was then and there the owner thereof, five certain twenty dollar gold pieces of the value of twenty dollars each, good and lawful gold coins of the United States of America; also one certain five dollar gold coin, good and lawful money of the United. States of America, of the value of five dollars; also two ten dollar bills of the denomination of ten dollars each, good and lawful money of the United States of America, of the value of ten dollars each; also one five dollar bill of the denomination of five dollars, good and lawful money of the United States of America; also five silver dollars, good and lawful money #of the United States of America, of the value of one dollar each,” etc.
Counsel for appellant assigns for error the overruling of the motion for new trial based upon the insufficiency of the evidence to support the verdict, "because there was no evidence showing the kind or value of any of the money, as alleged in the indictment. ” All of the money is alleged to be the lawful money of the United States of America. It is contended that the proof fails to show that any of the money was the coin or bills of the "United States of America.” Unquestionably this is a description of the coins and bills alleged to have been taken from Flippin, and hence a description of the particular offense charged against appellant. This being the case, while an unnecessary description, still it must be proved. (Childers v. The State, 16 Texas Ct. App., 527; Gray v. The State, 11
The indictment alleges that the robbery was effected by an assault upon the body of Flippin, and also by force and violence to the said Flippin. There is no allegation that it was effected by putting him in fear of life or bodily injury.” Something is said in the indictment about fear of life or bodily injury, but there is no allegation that Flippin was put in fear of anything.
The indictment alleging that appellant took the money from the person of Flippin, and the proof showing that Flippin delivered the money to the appellant, counsel for appellant contends that there is a variance, and that the allegation that appellant took the money is not sustained by the proof. What are the facts bearing upon this point? Flippin says that appellant and Tom Price galloped to his house about sundown; that the first he saw of them, to know them, they had their pistols in his face and said “hand up your checks, God damn you; dig up that pot that you have got buried. It is money that we want. Dig it up, we know that you have got it. Dig it up, God damn you, dig it up.” Tom Price hit him on the side of the head with a pistol, and he gave Price his pocket book, and he handed it to appellant.
How it is contended that this does not show a taking of the money, but a delivery of the money by Flippin through fear. A presents a cocked pistol toward B and demands his money. B, through fear of loss of life or great bodily injury, delivers to A his money. We are seriously told that A did not take B’s money. The authorities and common sense say that he did take B’s money. But counsel for appellant admits this would be a taking of the money but for article 723 of the Penal Code. This article has no reference whatever to the state of facts presented in this record. They are provided for in article 722. This is evident, because appellant and Price not only exhibited fire arms, but used them in the commission of the offense, and in such a case the punishment may be for life, while the penalty for a violation of article 723 is not less than two nor more than five years.
As the case will have to be tried again, we will not give our views on the evidence. Because the State failed to prove that the money taken was United States money, as alleged, the judgment is reversed and the case remanded for another trial.
Reversed and remanded.
