39 S.W. 933 | Tex. Crim. App. | 1897
Conviction for robbery in the Chickasaw Nation, Indian Ter., and bringing the property thus acquired into Grayson County, Texas. Motion was made to arrest the judgment, because the indictment upon which appellant was tried and convicted did not charge an offense against our code. The charging part of the indictment alleges that "Charles Smith, by assault and violence upon Mrs. R.F. Burdg, and by putting the said Mrs. R.F. Burdg in fear of life and bodily injury, did fraudulently take from the possession of Mrs. R.F. Burdg corporeal personal property of the said Mrs. R.F. Burdg," describing said property. It further alleges: "Which said act, by the laws then in force in the Chickasaw Nation, Indian Ter., was the offense of robbery." The definition of "robbery" under the Arkansas statute, in force in said nation (appellant, being a white man, living in Grayson County, Texas), is as follows: "Robbery is the felonious and violent taking of any goods, money or other valuable thing, from the person of another, by force or intimidation. The amount of force or the mode of intimidation is not material, further than it may show the intent of the offender." The act of the nation relating to this offense is as follows: "It is enacted by the legislature of the Chickasaw Nation, that after the passage of this act, if any person or persons, within the limits of this nation, shall commit robbery, or be an accessory thereto, he shall upon conviction be sentenced, for the first offense, to thirty-nine lashes on the bare back, and return the property taken, or the value thereof, to the injured party, and by fine in the sum of not exceeding one hundred dollars, and imprisonment in the national jail with hard labor, not exceeding six months, at the discretion of the court." For the second *346 offense the punishment is greater, and for the third offense death shall be the penalty. The statute of this State upon this subject provides, in substance, that if the accused in any territory shall commit robbery, and shall bring the property acquired by the robbery into this State, he shall be punished as if the offense had been committed in this State. Penal Code, 1895, Art. 951. Article 952 provides that, to render a person guilty under the preceding articles, it must appear, under the law of the territory from which the property was taken, that the act committed would have been robbery. The indictment, as set out above, alleges the acts constituting the offense. It will be noted that the acts are set out in the indictment constituting the supposed robbery in the territory. It will also be noted that it is alleged that property was taken, not from the person, but from the possession, of Mrs. R.F. Burdg. Now, unless these acts constitute robbery under the laws of the territory, it would be no offense to bring the property to this State, though the acts constitute robbery if committed in Texas. This proposition is settled by Art. 952, Penal Code. The law of Arkansas (which controls by act of congress, the accused being a white man) defines "robbery" as follows: "Robbery is the felonious and violent taking of any goods, money or other valuable thing, from the person of another, by force or intimidation." Under this act, to be sufficient, the indictment must allege that the property was taken from the person. An allegation that it was taken from the possession of the party would not be sufficient. The law of the territory does not define "robbery" at all. It provides that "if any person or persons, within the limits of this nation, shall commit robbery, or be an accessory thereto, he shall upon conviction be sentenced," etc. Now, we are not informed by this as to the elements of robbery, and we are not aware of the fact that it would be robbery under the law of the territory to take property from the possession of the party by violence, etc., as it would be in Texas. The burden is upon the State to make out its case. The State must show that the act charged to have been robbery was in fact robbery under the laws of the territory. This can only be shown by introducing the law in evidence. If the common law be in force in the nation, in regard to this matter, this should be shown. No conviction can be had legally, unless the act committed by the accused was robbery under the law of the territory, or under some law of the territory. We have held that, whether that law be an act of congress or the law of the territory, it would be sufficient. We have found that to constitute robbery under the law of Arkansas (which is in force as to American citizens, not Indians) the property must be taken from the person. This conviction cannot be sustained under that law. Now, if, under the law of the territory, robbery can be committed by taking property from the possession of another, the State must show it. If the common law is in force in the territory, this must appear. But concede the common law to be in force in the territory, the acts charged by this indictment claimed to be robbery do not constitute robbery at common law. The definition *347 of "robbery" at common law, given by Mr. Bishop, is: "Robbery is a larceny committed by violence from the person of one put in fear." See, 2 Bishop's Crim. Proc., Art. 1001. The form for an indictment for robbery is also given. That form requires an allegation that the property was taken from the person of another. We are of opinion that the motion in arrest of judgment was well taken, and the judgment is reversed, and the prosecution ordered dismissed
Reversed and Ordered Dismissed.
