Carrillo v. State , 172 Tex. Crim. 489 ( 1962 )

DICE, Judge.

Appellant was convicted of the offense of theft from the person, upon his plea of guilty to. an indictment charging the offense of robbery by assault, and his punishment assessed at confinement in the penitentiary for two years.

The state confesses error and concedes that the conviction for theft from the person cannot be sustained under the indictment for robbery by assault, since it is not an included offense.

The state’s position is well taken, under the holding of this court in Van Arsdale v. State, 198 S.W. 2d 270, that the offense of theft from the person is not an included offense in the crime of robbery and that a court is without jurisdiction to try an accused for the offense of theft from the person under an indictment charging the offense of robbery. See, also, Ex Parte Dies, 160 Texas Cr. Rep. 468, 272 S.W. 2d 373.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.