Johnson v. State , 35 Tex. Crim. 140 ( 1895 )

The appellants were jointly tried under an indictment charging them with robbery, and were convicted and sentenced to the penitentiary for a term of twenty-five years. From the judgment and sentence of the lower court they prosecute this appeal. The appellants assign a number of errors as to whether the evidence in this case shows the offense to have been robbery. The appellants contend that the State's proof showed, if anything, theft from the person, and not robbery; and from the appellant's testimony it showed, if anything, a case of swindling; and this question they raise in their assignments of error in several ways. The evidence shows that the appellants were acting in concert, and that they produced what they term "turning the flying pigeon," which is a piece of leather folded together, with two one-cent pieces concealed therein. It was unrolled in the presence of the prosecutor, Mans Varner, and one of the cent pieces taken out. The appellants then offered to bet that there was another one-cent piece in the roll. It seems that the prosecutor, Varner, was reluctant to bet, and that the appellants made a bet between themselves, and one of them asked the prosecutor to change some money for him, in order to make the bet with the other appellant. Varner took his purse out to get the change, and while he was holding it in his hand, it was suddenly snatched therefrom by Harrison Johnson. Varner then grabbed Harrison Johnson, and the other appellant drew a pistol, and Varner then turned Harrison Johnson loose. This is enough of the testimony to present the issues made by appellants. Our statute on the subject of robbery provides that, "If any person by assault, or by violence and putting in fear of life or bodily injury, shall fraudulently take from the possession or person of another, any property, with intent to appropriate the same to his own use, shall be guilty of robbery." The authorities indicate that, where there is no fear excited prior to the act of robbery, there must be force or violence used to the person robbed, and all the authorities we have examined, except State v. Carr,43 Iowa 418 — and that seems to be decided upon the peculiar statute of that State — appear to hold that the mere snatching of property from another's hand is not such force as will constitute the offense of robbery. See 2 Bish. Crim. Law, § 1167, and authorities there cited; 1 Whart. Crim. Law, § 854. Our statute on theft from the person seems to have been intended to cover an offense of this character, and to make the same theft from the person. Boyd v. State (Texas Crim. App.) 29 S.W. Rep., 157. We would suggest that always, in a case of this character, where the pleader cannot be absolutely certain beforehand what the facts may develop on the trial, and where the line of demarkation between offenses, as in this case, has a very narrow margin, to use a sufficient number of counts covering every possible phase of the case. Certainly both robbery and theft should have been alleged. And if the defense, as they insist in this case, presents an offense different from that charged, there should be a count covering that contingency, as that the money in question was won by a swindle. See Gray v. State, 32 Tex.Crim. Rep.. Because, in our opinion, the evidence in this case fails to sustain the charge of robbery the judgment is reversed, and the case remanded.

Reversed and Remanded.