Armstrong v. State, 14560.

• Decision Date: 24 February 1932
• Docket Number: No. 14560.,14560.
• Citation: 46 S.W.2d 987
• Parties: ARMSTRONG v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W.2d 987

ARMSTRONG v. STATE.

No. 14560.

Court of Criminal Appeals of Texas.

February 24, 1932.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Buford Armstrong was convicted of robbery, and he appeals.

Affirmed.

Frank Judkins and Frank Sparks, both of Eastland, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for robbery; punishment being assessed at five years in the penitentiary.

The indictment alleges that an assault was made upon E. F. Penn, and that by such assault and violence, and by putting said Penn in fear of life and bodily injury, there was taken from his possession "lawful money of the United States of America of the value of more than fifty dollars," which was alleged to be the property of said Penn.

The evidence discloses that on the night of September 10th a robbery occurred at a place of business known as the "Hall Tire Company." The witness Carlton speaks of it as "his place of business." Upon the occasion of the robbery, he was not present. He testified that E. F. Penn was in charge of the place at that time, and had charge of the place of business just the same as if it belonged to him; that he (Carlton) was away from the place of business about forty-five minutes, and upon his return Penn reported the robbery. Penn testified that about 8:30 o'clock on the evening of September 10th three men drove into the station in a Chevrolet coach; that he was there by himself, and went out to wait upon the parties; that appellant was driving the car, and stepped out and met witness, presented a pistol at him, and told him to stick up his hands; that, after he had put his hands up, a party in the rear seat of the car levelled a shotgun on him and guarded him while appellant and the man who had been on the front seat with him went into the office of the station, rifled the cash register, got the safe, brought it out, and loaded it into the car. The robbers got $91.45 in money. The next morning the safe was discovered in a pasture some distance from the point of the robbery. It had been broken open and such money as was in the safe had been taken, except a small sum in an envelope which had been overlooked.

Appellant did not testify, but interposed a defense of alibi, the testimony to support which, if believed by the jury, placed appellant some one hundred and seventy-five miles from the point where the robbery occurred at the time it was committed. Appellant was not arrested until the 18th day of September, at which time he was alone traveling in a Chevrolet coach. At the time of the arrest the officers found in the car a pistol and two shoulder holsters, and some ammunition. The pistol was a blue-steel Colt six-shooter, and was similar in size and appearance to the one claimed to have been used by appellant at the time of the robbery.

We consider the bills of exception in the order they appear in the transcript.

By bills of exception 1, 3, and 6, appellant presents the point that there was a variance between the allegations in the indictment and the proof, in that he claims the evidence does not support the averment that Penn was the owner of, and in possession of, the property alleged to have been taken at the time of the robbery. We fail to see any tangible basis to support this contention. Mr. Carlton, the manager of the Hall Tire Company, was not present when the robbery occurred. Mr. Penn was the only one connected with the business who was present at the time. It was by reason of the assault upon him that the robbery was effected. He was in actual care, control, and management of the property. Mr. Carlton said Penn was "in charge of the place of business just the same as if it belonged to him."

Appellant objected to the charge of the court because in immediate connection with the paragraph submitting the state's case there was not included the issue of reasonable doubt. The subject of reasonable doubt was later in the charge applied to the case generally. The affirmative defense was an alibi. Upon that issue, and in immediate connection with it, the jury were told, if they entertained a reasonable doubt as to the presence of appellant at the time and place where the offense, if any, was committed, to find him not guilty.

In the indictment it was alleged that appellant did "unlawfully and wilfully" make an assault upon the person of E. F. Penn, and that by said assault and by violence, and by putting the said Penn in fear of life, etc., the property described in the indictment was taken. In submitting the case, the court followed the language of the indictment, and required the jury to believe beyond a reasonable doubt that appellant "unlawfully and wilfully" made an assault upon Penn before they could convict. The charge was specifically objected to because it nowhere defined the term "wilfully." In support of his contention that such instruction was necessary, appellant refers us to Madrid et al. v. State, 71 Tex. Cr. R. 420, 161 S. W. 93 (robbery); Holt v. State, 48 Tex. Cr. R. 559, 89 S. W. 838 (false swearing); Clay v. State, 52 Tex. Cr. R. 555, 107 S. W. 1129 (perjury); Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614 (slander); Stephens v. State, 90 Tex. Cr. R. 245, 234 S. W. 540 (malicious mischief); Owens v. State, 19 Tex. Cr. R. 242 (driving stock from accustomed range); Shubert v. State, 20 Tex. Cr. R. 320 (driving stock from accustomed range). If an offense is made to depend upon the fact that it is "wilfully" done, it is necessary for the trial judge to define the word "wilful." Each of the cases mentioned—save Madrid's Case —was dealing with that character of offense. Hence the cases have no application here. In Madrid's Case, supra, the indictment contained three counts, the first charging assault with intent to murder, the second charging maiming, and the third charging robbery, and as in the present case, the indictment uselessly averred that the assault to rob was "wilfully" committed. There the court did define the word, and accused objected because the statute defining robbery did not require that it be "wilfully" committed. The court said that the offense of robbery was such that the meaning of the word was necessarily included in the offense, but disposed of the real question by saying that accused had no ground of complaint because the court had really added an unnecessary burden to the state. It was not required under the definition of robbery (article 1408, P. C.) to allege that the assault was "willfully" made. It was not descriptive of the offense, every element of which was averred in the indictment. The word "wilfully" could have been ignored as surplusage. The fact that the court followed the language of the indictment and incorporated in his instruction the word mentioned, without defining it, could in no way have injured appellant, regardless of whether the jury understood the legal and technical meaning of the word. They were required under the charge to find beyond a reasonable doubt that...