49 S.W.2d 779 | Tex. Crim. App. | 1931
Lead Opinion
The offense is theft from the person by taking of property so suddenly as not to allow time to make resistance; the punishment, confinement in the penitentiary for two years.
J. D. McCreless, the injured party, is a white man and appellants are negro women. McCreless had gone into the negro section of Big Spring in an effort to sell chickens. Touching the alleged theft of his money, he testified, in substance, as follows: He stopped his car in front of the house occupied by appellants. One of the appellants stated to him that they wanted to buy some chickens, and asked him to come into the house. When he had entered the house, appellants invited him to have sexual intercourse with them, insisting that he spend some money with them. When he refused to comply with their request, one of the appellants latched the screen door he had entered. He backed toward the door, turned and unlatched it. While he was trying to make the appellants keep their hands off of him, one of the appellants ran her hand in his pocket, seized his pocketbook, and ran out of the house, followed by the other appellant.
On cross-examination, the injured party said: "They came up and put their hands on me and began to fondle, yes, trying to pet me a little bit, and getting right up close to me both of them, yes, and they wanted to do a little business, that is what they said. They wanted me to spend some money with them. * * * I do know that both of them were trying *598 to love me up. * * * They did not put their arms around me nor put their hands on me and pet me, no. They just ran up and tried to and I told them not to. They did all they could. Both of them wanted to love me. I was not trying to get away all of the time, I started out — I was trying to get away. They did not grab me and take my money away from me, no, they did not do that. They did not have hold of me and grab it out of my pocket, no, as I turned out of the door, one of them ran her hand in my pocket. As to whether I felt it and knew she was getting it, I knew she got it, and I did grab at her and try to keep her from getting away, yes. I did not follow her up and try to catch her, I could not. She was gone too quick. I could not keep up with her."
Mr. McCreless testified further that he had between $7 and $8 in his purse, consisting of at least five $1 bills, some halves and quarters. He immediately notified the officers, who went with him to the scene of the theft. Appellants were not there. The officers, accompanied by Mr. McCreless, instituted further search, which led them to a house in which there were six or seven negro women in one room. The injured party, in looking over the group of negro women, pointed out the appellants. They were arrested, carried to jail, and searched. Appellant Dorothy Thomason had four $1 bills on her person. Appellant Rosie Lee Hammond had $2.30 in silver on her person. The purse of the injured party was found in some brush one block back of the house described as the scene of the theft. Appellants were positively identified by the injured party.
Appellants testified that they were not at the place described by the injured party, and denied that they took his money. Appellant Dorothy Thomason testified that the four $1 bills found on her person had been given to her by one Broadnax. Broadnax corroborated her testimony on this point.
Appellants contend that the evidence shows robbery by assault, and not theft from the person, it being urged that the testimony of the injured party manifests that there was actual violence to his person antecedent to the taking of his money. We are unable to agree with this contention. The state's testimony fairly interpreted, in our opinion, shows that at the time one of the appellants ran her hand into the injured party's pocket and took his purse, neither of the appellants had their hands on him. He testified that the purse was taken from his pocket as he was leaving the room and while he had his back to the party taking the purse. It appears that the purse was taken so suddenly as not to allow time for resistance. There was no evidence of a struggle. The mere fact that the appellants, had, prior to taking his purse, placed their hands on the injured party and fondled his person in an effort to induce him to have sexual intercourse with them, would not, in our opinion, raise the issue *599
of robbery by assault. The actual or threatened violence to the person antecedent to the robbery is a distinguishing element between robbery and theft. Harris v. State,
It was charged in the indictment that the property was taken so suddenly as not to allow time to make resistance before it was carried away. We think the allegation supported by the proof. The fact that the injured party may have attempted to resist after the purse was removed from his pocket does not present a question of the failure of the proof to support the allegations of the indictment. A taking of the property from the person includes a taking away thereof within the meaning of the statute. If the property was taken so suddenly as not to allow time to make resistance, it was also carried away so suddenly as not to allow time to make resistance. Dukes v. State, 22 Texas App., 192,
Appellants rely chiefly upon the case of Mayzone v. State,
Appellants bring forward a bill of exception wherein they complain of the action of the trial court in permitting the officers to testify touching the result of the search of their persons. It appears that the officers making the arrest had no warrant of arrest. Upon being notified by the injured party that his money had been stolen, the officers immediately instituted a search for the appellants. Upon finding them in a room with some other negro women, the officers arrested them after they had been pointed out by the injured party, and took them to jail. A search disclosed money on the person of each of the appellants. No question of the search of the residence of appellants is involved. As to Dorothy Thomason, we find that she testified to substantially the same facts touching the finding of money on her person as disclosed in the testimony of the officers. Hence she is in no position to complain that the search was illegal. In any event the opinion is expressed that the holding in Hepworth v. State, 111 Tex.Crim. Rep.,
In construing the foregoing article, this court said: "This article has uniformly been held to give the right to arrest without a warrant. Morris v. Kasling,
Bill of exception No. 2 complains of the action of the trial court in permitting Miller Nichols, a witness for the state, to testify, over the objection of appellants that the witness had remained in the courtroom and heard the testimony of other witnesses after the rule had been invoked. It appears from the bill of exception that the witness had been sworn and placed under the rule with the other witnesses, and was not thereafter excused from the rule; that he did not retire from the courtroom, but heard the testimony of all the witnesses on the witness stand who preceded him; that he was constable of precinct No. 1 in Howard county and was in attendance upon the court as a witness in behalf of the state. It further appears from the bill of exception that the witness testified to the fact of having found the pocketbook of the injured party in the vicinity of the scene of the theft, in some brush. The testimony given by the witness was undisputed. No effort was made to question the fact that the pocketbook of the injured party was found near the scene of the theft. It is the holding of this court that the question as to whether witnesses who have violated the rule or have not been placed under the rule shall be permitted to testify is addressed to the sound discretion of the trial court, and that, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised. Branch's Annotated Penal Code, sec. 344; Cooper v. State, 72 Tex.Crim. Rep.,
Failing to find error, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
We have reviewed the facts, and the conclusion is expressed that no error was committed in refusing to instruct the jury to acquit the accused if they believed that the money was taken from the injured party by force or if they had a reasonable doubt upon that subject.
The appellants' contention that the evidence of the result of the search *602
as improperly received is regarded as having been properly decided on the original hearing. In this motion for rehearing the appellants apparently fail to take note of the distinction between the facts controlling the decision of the Hepworth case, 111 Tex.Crim. Rep.,
See, also, Stokes v. State, 117 Tex.Crim. Rep.,
The motion for rehearing is overruled.
Overruled.