Lead Opinion
This is a conviction for robbery by assault; the punishment, confinement in the penitentiary for fifteеn years.
The indictment contained two counts: The first charged robbery by assault while using and exhibiting a firearm, to-wit: a gun; the second charged robbery by assault while exhibiting a sub-machine gun. The second count was abandoned by the state. Upon motion of the state, the allegatiоn in the first count as to the use .of a gun was dismissed and abandoned. As thus
Appellant excepted to the action of the court in permitting the state to abandon the allegation relative to use of the gun, and here urges same as error.
The action of the trial court was in keeping with established precedent. Branch’s P. C., Sec. 2383; Weaver v. State,
Aрpellant insists that, notwithstanding the dismissal of that part of the indictment charging the use of a gun, the offense charged by the indictment was a capital felony and that he was entitled to а special venire from which the jury was to be drawn. He excepted to the actiоn in refusing him a special venire.
The use of a firearm or other deadly weapon in effecting the crime of robbery is but a circumstance of aggravation and affects оnly the determination of the penalty and grade of offense. Without such an allegatiоn the punishment fixed for the crime of robbery is confinement in the penitentiary for life or for a term of not less than five years. Art. 1408, P. C. Such offense is one ordinarily termed a felony. Art. 47, P. C. A cаpital felony is one for which the highest penalty is death. Art. 1408, P. C. A special venire is required оnly in a capital case. Art. 587, C. C. P.
In support of his contention appellant relies upon the case of Viley v. State,
In the instant case the indictment charged the robbеry to have been committed by assault and by violence and by putting in fear and by using and exhibiting a firеarm.
The case of Gonzales v. State,
We are unable to see any еrror in the action of the trial court in refusing to permit appellant to testify as to thе mistreatment administered to him by police officers in an en
Not being permitted to introduce before the jury such testimony directly, the appellant was equally unauthorized to get such fact before thе jury by volunteering same, in connection with his answer to other questions, after the objectiоn of the state had been sustained. The trial court was warranted in reprimanding him for his action in disregarding- the trial court’s ruling.
Appellant was positively identified by the injured party as the man whо, together with another, robbed him of $117.
It was the province of the jury to reject apрellant’s defense of alibi.
No reversible error appearing, the judgment is affirmed.
Opinion approved by the court.
Rehearing
ON MOTION FOR REHEARING.
Appellant again complains because the jurors wеre allowed to take with them in their deliberations the indictment herein, as shown by his Bill of Exception No. 3. It is shown by the qualification of said bill that upon the motion of the state, the portiоn of the indictment charging the use of a firearm, to-wit, a pistol, was waived by the state by an instrument in writing approved by the court; and the second count in the indictment charging such robbery wаs committed by the use of a sub-machine gun was dismissed in its entirety upon the motion of the district attorney, although such allegation of necessity remained in the indictment. The trial court then charged the jury, among other things, as follows:
“Gentlemen of the Jury: The second count of the indictment is withdrawn from your consideration, and this case is submitted to you only upon the first count of thе indictment, and the verbiage set out in the first count of the inidctment as follows is hereby withdrawn from your consideration, ‘And then and there by using and exhibiting a firearm, towit, a pistol.’ ”
The original opinion herein has already disposed of the questions again presented to us, and we adhere to its conclusions relative thereto.
The motion for a rehearing will be overruled.