99 S.W.2d 934 | Tex. Crim. App. | 1936
Conviction is for robbery, punishment assessed being five years’ confinement in the penitentiary. The conviction was had under the count in the indictment which charged the robbery of Allen Hillhouse.
On account of the peculiar circumstances relied upon by the State we deem it not inappropriate to make a somewhat extended statement of the facts. On the night of June 22, 1935, a dance was given by Clyde Massey, whose house was situated in the country in San Saba County. Allen Hillhouse and his brother Clarence were the musicians for the dance. They lived in Brownwood and were relatives of Massey. They had been brought to the scene of the dance by Luther Wilder. Wesley Hillhouse, a brother of the two already mentioned, seemed to have been “bookkeeper” and the money collected from the dancers was turned over to him. Appellant and many others were in attendance at the dance. Upon invitation of Wesley appellant seems to have been made floor manager. The musicians were to be paid for their services by contributions received from those who were dancing, and by custom their services were supposed to end at midnight. About that time a
We are exceedingly doubtful whether under the record as a whole this conviction should be permitted to stand. But waiving that, we are quite certain that the instruction suggested in appellant’s objection to the court’s charge should have been given. We are inclined to the view that the principle announced in Barton v. State, 88 Texas Crim. Rep., 368, 227 S. W., 317, is applicable here. It is not necessary to extend this opinion by repetition of the facts in Barton’s case, but the following statement of the law is found in that opinion:
“The animo furandi is an element of robbery as it is of theft, and both in theft and robbery the taking of goods upon a bona fide claim of right may negative any intent to steal. * * * This principle has been applied to the forcible retaking of specific property in this and other jurisdictions.”
Supporting such announcement the cases of Wolf v. State, 14 Tex. App., 210; Temple v. State, 86 Texas Crim. Rep., 219, 215 S. W., 965; Glenn v. State, 49 Texas Crim. Rep., 349; Young v. State, 34 Texas Crim. Rep., 290, and Cole v. State, 104 Texas Crim. Rep., 533, 286 S. W., 204, are cited. In the Glenn case (supra) it appears that accused charged a man by the name of Anderson with having stolen $1.25 and forcibl; repossessed it. Anderson had $3.00 in- his pocket in additior to the $1.25, but Glenn only took what he claimed Anderson had improperly gotten. This significant statement is found in the opinion:
“If it had been robbery, and the assault and violence was for the purpose of fraudulently taking the property not his*420 own, he evidently would have taken the remaining three dollars Anderson had on his person at the time.”
There was an effort at concealment on the part of appellant and those with him. Everything that was done seems to have been -done openly, and even if appellant took the $1.75 forcibly if that was the amount of money he thought had been contributed to pay the musicians and the dance broke up without them having furnished the music expected, and it was taken with the intent on his part to return it to those having made the contribution fraudulent intent would appear lacking. That he had already returned twenty-five cents to one contributor, for which he had a right to reimburse himself, and that he had repaid ten cents to one of the contributors immediately upon taking the $1.75, and the next day repaid a number of other parties, seems to be undisputed in the record. Appellant admitted that he had some ten or twenty cents of the $1.75 and had not returned it to the contributors because he did not know who they were, but disclaimed that such amount so retained belonged to him.
Believing that the jury should have been instructed what the legal effect was if appellant had taken more than the jury might find was actually contributed, but only such amount as appellant honestly believed had been contributed, and further entertaining serious doubt that the case upon the whole facts presents one of robbery, the judgment is reversed and the cause remanded.
Reversed and remanded.