Murphy v. State , 43 Tex. Crim. 515 ( 1902 )

HEUDERSOU, Judge.

Appellant was convicted of robbery, and his punishment assessed at five years confinement in the penitentiary. Appellant made a motion to quash the indictment, which was overruled. The ground of the motion was that the indictment alleges that the intent with which the act was done was “to deprive the owner of the same,” instead "of the value of the same.” The value is alleged in the indictment, and the allegation that the intent was to deprive "the owner of the same” embraces with it the value of the same as previously alleged.

The refusal of the court to give appellant’s special charge on his confession of the offense was correct. If the crime—that is, the corpus delicti—had depended alone on appellant’s confession, then it would have become necessary to have instructed the jury in regard thereto; that is, that they could not convict defendant on his confessions alone. In this case there was positive testimony of the robbery, and there was no occasion to charge on confessions.

Appellant also complains that the court in defining "robbery,” left out the word "fraudulent” in connection with the taking. A reference to the charge shows that this contention is correct. However, the question is, was the omission of this expression in the definition of the offense calculated to injure or impair appellant’s rights before the jury ? If the record presented any controversy in regard to the intent with which the property was taken,—that is, if it suggested some claim of right on the part of appellant to the property, or that it was taken with some intent other than that of the fraudulent intent to appropriate it to his own use,— then the objection urged to the charge would be well taken. But when we recur to the statement of facts there was no controversy as to this matter. Appellant had no claim whatever to the $20 which he is shown to have taken from the prosecutor, and if he took it—and the evidence shows he did—he unquestionably took it with the fraudulent intent to deprive the owner of the same, and to appropriate it to his own use. So the omission of the word "fraudulent” in the definition of the offense contained in the charge was not calculated to injure appellant/ and we are not authorized to reverse the case unless it was calculated to injure him. Code crim. Proc., art. 723.

The charge on accomplice testimony was sufficient. The issue was submitted to the jury as to whether the witness was an accomplice, and it was not required of the court to specially instruct the jury that said witness was an accomplice. The court gave a charge in favor of defendant, instructing the jury to acquit him if he took the money under such circumstances as to constitute theft from the person, and not robbery, and the requested charge on that subject was not necessary. a

In our opinion, the evidence supports the verdict, and the judgment is affirmed.

Affirmed.