100 S.W. 916 | Tex. Crim. App. | 1907
Appellant was convicted of robbery, and his punishment assessed at five years confinement in the penitentiary; hence this appeal.
Appellant contends that there was a variance between the proof and the allegations in the indictment. The allegation in the indictment is to the effect that appellant took from the prosecutor one ten dollar bill. The proof on this point shows that he leveled a pistol on prosecutor and demanded of him to pay him what he owed him, which he claimed was for a week's work, $8. Prosecutor pulled out a ten dollar bill, and appellant told him to throw it down, which prosecutor did, and appellant then commanded another negro, who was present, to go and get that changed and bring him back the change. The other negro brought him back the change, and he paid appellant $8, giving the other $2 to prosecutor. This proof shows that while he only *42 claimed $8, he compelled the prosecutor to deliver up a ten dollar bill, which is according to the allegation of the indictment. If this is robbery, the fact that he gave him back $8 out of the ten dollar bill which he took from him would make no difference. There would be no variance. Appellant also claims there is a variance in that the money was not taken directly by appellant, but the prosecutor threw the bill on the floor and appellant compelled another negro to take it and go get the change. There was no varaince as to this matter, and the court properly instructed the jury that a taking in that way would be a taking by appellant.
During the trial while the witness McFarlane for the State was on the stand, he was asked to state if the defendant did not state to him that he had been convicted of a crime and sent to the penitentiary, to which he answered, "Yes." This was objected to by counsel for defendant on the ground that defendant was not on trial for any other offense than that charged in this indictment; that if the testimony is admissible at all, the records of conviction are the best evidence; because irrelevant and immaterial. The court overruled this objection and the witness further stated, "Yes, sir; he told me that he had been in the penitentiary twice for burglary. He told me at the time where he went from, and who was the officer who arrested him, but I don't remember the place nor who was the officer that arrested him." The question of impeachment of a witness by showing that he had been charged with a crime or been guilty of some criminal offense has been before this court a number of times. See Carroll v. State, 32 Tex.Crim. Rep., and Brittain v. State,
The court gave the following charge to the jury: "If the said W.T. Smith was indebted to the defendant he would not have the right to extort money in payment thereof by assault, violence and by putting *43
the said W.T. Smith in fear of life or bodily injury." This was objected to on the ground that it does not state the law, but that the contrary is the law, to wit: It is insisted that if the prosecutor Smith was justly indebted to appellant in the amount of money taken from him, that it would not be robbery for appellant to constrain him to pay it by force and violence; that it would not be depriving the prosecutor of his property. On this subject we are referred to a number of cases, both in this State and out of it. See Smith v. State, 11 Texas Ct. Rep., 1023; Bollen v. State, 13 Texas Ct. Rep., 148, and Glenn v. State, 15 Texas Ct. Rep., 878. In the Smith case, supra, the parties were shooting craps, and a five dollar bill was up as the stake. The prosecutor claimed that the dice were cocked, and another throw was made. The prosecutor lost, and appellant went to get the money, and prosecutor started to pull his gun, and appellant drew his first and took the bill. A charge was asked in favor of appellant presenting this view of the case for acquittal, which was refused. This was held error. As we understand it the court decided that appellant, according to his testimony, having a right to the bill, and having procured possession of it, after the manner stated, that it would not constitute robbery. In Bollen's case, supra, it was simply held that the court should have instructed the jury that the property must have been taken fraudulently before there could be robbery. In the Glenn case, supra, the following was the state of facts: Appellant and prosecutor slept in the same room; appellant claimed the next morning that prosecutor had stolen $1.25 from him; that he saw appellant put his hand in his pocket, and his money was gone, and, under these circumstances, he, by force, compelled appellant to hand him over the money, which he claimed he had stolen from him. It was held on that state of facts that there was no robbery. In these cases, however, it seems that there was a claim to the specific property and not a mere debt as is presented here. In the 24 Amer. Eng. Ency. of Law, 2nd ed., 1004, we find it to be stated that, "As it is essential, to constitute robbery, that the thing taken must belong to another than the taker, it follows that though the property is taken from another forcibly or by putting in fear, this is not robbery, whatever else it may be, if the taker at the time has a bona fide belief that the thing taken is his own." Under this proposition a number of authorities are cited, including cases from various States, as well as English common law cases. These cases appear to turn on the right to claim the specific property and to recover it by violence, but it is further stated in the text that it is not robbery by violence to take money or other property in payment of a debt, unless more is taken than is due. Under this we find the following cited cases: Reg. v. Coghlan, 4 F. F., 316; Reg. v. Hemmings, 4 F. F., 50; Crawford v. State,
Reversed and remanded.