Crouch v. State ( 1969 )

OPINION

WOODLEY, Presiding Judge.

The offense is robbery; the punishment, 6 years.

This is a companion case to Bowling v. State, Tex.Cr.App., 438 S.W.2d 930.

Trial was before a jury on a plea of not guilty. The state relied on circumstantial evidence and the jury was also instructed, as to the law of principals, and accomplice testimony.

The sole ground for reversal is the contention that the evidence is insufficient to sustain the conviction.

The count of the indictment on which the case was submitted to the jury alleged the robbery of A1 Sprinkle on or about the 21st day of .November, 1967.

The state’s evidence reflects that while Sprinkle, the attendant, was alone between 2:30 and 3 A.M. on November 21, 1967, at the Echo Oil Company service station on the Mansfield Highway in Forest Hills, Tarrant County, Texas, a man stuck an object against his back, told him to get his hands up and start walking and not to turn his head, threatening: “If you do I will bust you wide open.”

This man took out of Sprinkle’s hip pocket his billfold containing $46.00 and the keys to the cabinet where the company money was kept.

Appellant and another man, who kept his back toward Sprinkle, also took from the service station a metal box and a cigar box which contained money belonging to the service station, and certain papers including a Petrofina Credit Card issued to Charles W. Rivers, a customer of the service station.

A short time after the robbery an officer saw a car driven by the accomplice witness Delbert Richards in the wrong direction on a one way street. It entered a parking lot.

Officers identified appellant as the occupant of the back seat, in whose shirt pocket was found the credit card issued to Charles W. Rivers; and testified that a hat “with a bunch of money in it” was on the front seat of the car.

The accomplice witness, Richards, testified that he drove appellant and Sam Dinese (also referred to as Oliver Bowling) to Forest Hills at their request, and under their direction drove to a service station on the Mansfield Highway in Forest Hills and parked the car about 200 yards to the rear of the service station; appellant and Dinese got out and went toward the station. Four or five minutes later they came from the station, appellant holding a metal box and Díñese a cigar box which they did not have when they left the car.

Money from the boxes was poured into the witness’ hat and the boxes were thrown out on the way to the parking lot where the officers arrested them.

Dinese gave the witness two ten dollar bills that appellant handed him and told the witness Richards: “There will be more when we get this counted.”

Appellant’s brief questions the sufficiency of the testimony to show that the credit card had not been taken out of the box by Elwyn Ray Smith, the manager, prior to the robbery. Mr. Smith testified that he tried to catch Mr. Rivers to give him the card on the evening before the robbery. Appellant argues that Mr. Smith did not testify that he put the card back in the box.

Mr. Smith’s testimony that the credit card was in the metal box taken in the robbery was positive. There is nothing in the record to show that Mr. Smith removed it from the box prior to the robbery, when he was trying to catch Mr. Rivers.

The contention that the evidence is insufficient to sustain the conviction is overruled.

The judgment is affirmed.