Perez v. StatePerez v. State
- Reporters:
- , ,
- Before:
- Morrow
Lead Opinion
— Conviction is for the offense of robbery; punishment fixed at confinement in the penitentiary for five years.
In the indictment it is charged: “ . . . did then and there by using and exhibiting a firearm, to-wit; a pistol, make an assault in and upon one, Jose Ramirеz.”
A special venire was denied the appellant upon the annоuncement by the district attorney “that the State would abandon that part of the indictment which charged robbery with firearms and would not insist upon the death рenalty, but would try the ease upon that phase of the indictment which charged robbery by assault.”
Ordinary robbery is defined thus: “If any person by assault or violence or by putting in fear or life or bodily injury shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the pеnitentiary for life, or for a term *445 of not less than five years; and, when a firearm or other deadly weapon is used or exhibited in the commission of the оffense, the punishment shall be death, or by confinemént in the penitentiary for аny term not less than five years.” (Code of Crim. Proc., Art. 1327.)
Under this statute, to charge ordinary robbery, it is sufficient to charge that an assault was made without stating the instrument or means by which the assault was made, and if it is desired to prosecute for a felony less than capital, the indictment should be so drawn. If, however, it is desired by the pleader to classify the case as a capital fеlony, then there must be added to the indictment the averment that in committing the assault a deadly weapon was used. If upon the trial of the case of the State concludes that it is not desired to prosecute for a сapital offense, that part of the indictment containing the additional averment, that is, the averment that a deadly weapon was used, may be adandoned. In the instant ease, however, the pleader has chosen to depart from the form ordinarily used and to charge an assault with a deadly weapon, thus characterizing the case as a capital one. If the part of the indictment which charges that the assault was made with a deadly weapon be abandoned, then there is nothing left in the indictment upon which to prosecute. In other words, in striking out the words “assault with a dеadly weapon” from the indictment (as the indictment in this case is drawn) strikes from it an element of the offense and gives the case a different aspеct from an indictment which contains an averment appropriatе to charge ordinary robbery, but with the added averment that in committing the assаult a deadly weapon was used, in such an indictment the latter averment mаy be abandoned without in any sense marring the perfection of that pаrt of the indictment which charges ordinary robbery. Upon this subject will be found exрressions in the case of Gonzales v. State, 88 Texas Crim. Rep., 248, 226 S. W. Rep., 407, in which a conviction in the trial without special venire was upheld. In the Gonzales case, the indictmеnt contained two phases: — that is, one part of the indictment charged that the robbery was committed by assault, with the added averment that in making the assault, a deadly weapon was used. In the recent case of Viley v. State, No. 6604, the indictment was like that in the present case, and we held it to bе a capital one, and in consequence of which the acсused was entitled to a trial before a jury drawn from a special venirе. The decision in that case is conclusive against the State in this one.
Because a special venire was denied, the judgment is reversed and thе cause remanded.
Reversed and remanded.
Dissenting Opinion
(dissenting). — I regretfully dissent for reasons stated in Viley v. State/ this day decided on rehearing.