Smedly v. State , 30 Tex. 214 ( 1867 )

Willie, J.

The indictment in this case charges that the property taken by the defendant was “the coporeal personal property of one-, and within the legal custody and control” of the party upon whom the assault was committed. It is defective in not giving the name of the party to whom the article taken belonged. An indictment for robbery must state correctly the ownership of the property, (3 Arch. Crim. Plead., 417, note 3,) and all the approved common-law forms of indictments set forth the ownership of the property taken, as well as the name of the person from whom it was taken. (3 Arch. Crim. Plead., 417, note 3; Whart. Prac.) And our statute does not change the rules of the common law so as to allow any less particularity in this respect. It should clearly appear from the indictment that the article taken belongs to some person other than the accused, or that the party deprived of the possession through violence is entitled to such possession as against the defendant. For aught that appears from this indictment, the gun may have been the lawful property of Smedly, although in the legal custody and control of another. The owner cannot be guilty of theft, according to our statute, by taking such property from the party in possession, though under circumstances which would otherwise amount to this offense. (Penal Code, Art. 751.) Nor do we think that he would be guilty of robbery, though he obtained possession of it through violence and putting in fear. It is held at common law that if a party, bona fide, believing that property in the personal possession of another belongs to himself, takes that property away from him with menaces and violence, that is not robbery. (1 Russ, on Crimes, 872.) He certainly would not be liable to an indictment for robbery if the property ■ actually belonged to him and he was entitled to its possession.

Had the indictment charged that the gun was the property of the person from whom it was taken, it would probably have been supported by proof that this article was in his legal custody and control, though belonging to some third party. But in this indictment there is no allegation that it belonged to any one, much less does it affirmatively appear that it is the property of some one other than the defendants.

The judgment of the court below, refusing to sustain the motion in arrest of judgment, must be reversed, and the cause

Dismissed.