Bledsoe v. State

In his motion for rehearing, appellant insists that we erred in holding the facts sufficient to sustain the conviction and against his contention that there was a fatal variance between the allegations of the indictment and the proof as to the property alleged to have been taken in the robbery.

This contention is presented for the first time in this court. No specific attack was made touching the alleged variance upon the trial of the case. Indeed, the appellant did not specifically raise the question in his motion for new trial. Such, however, does not preclude appellant from raising the question here, but limits the investigation to alleged variance only.

The indictment described the property taken in the robbery as "$28.00 current money of the United States of America." The proof show that "$28.00" was taken. There is no direct testimony that the $28.00 so taken was "current money of the United States." Therein lies the claim of variance.

The figure "$28.00" means "twenty-eight dollars," as fully and to the same extent as if it were so written. Consequently, the indictment alleged and the proof showed that "dollars" were taken. A dollar is a unit of our currency. It always means money or what is regarded as money. United States v. Van Auken,96 U.S. 366, 368, 26 L. Ed. 852; Thompson v. State, 90 Tex. Crim. 125,234 S.W. 406. Consequently, proof of the fact that "dollars" were taken constitutes proof that "current money of the United States" was taken.

The exact question here presented was before the court in Armstrong v. State, 120 Tex.Crim. R., 46 S.W.2d 987. That was a case of robbery, in which the indictment alleged that the property taken in the robbery was "lawful money of the United States of America." The evidence showed that $91.45 in money was taken. It was there contended, as here, that a variance existed between the allegation of the indictment and the proof. Such contention was overruled.

The conclusion is expressed that proof showing that "dollars" were taken in a robbery satisfies the allegation that "current money of the United States" was taken.

The cases of Early v. State, 56 Tex.Crim. R.,118 S.W. 1036, Snelling v. State, 57 Tex.Crim. R., 123 S.W. 610, and Johnson v. State, 58 Tex.Crim. R., 126 S.W. 597, as well as all others in so far as they conflict with the views here expressed, are overruled.

Appellant's motion for rehearing is overruled.

Opinion approved by the Court.