Bailey v. State, 21003.
| Decision Date | 17 April 1940 |
| Docket Number | No. 21003.,21003. |
| Citation | 139 S.W.2d 599 |
| Parties | BAILEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Travis County; H. A. Dolan, Judge.
Calvin Bailey was convicted of robbery, and he appeals.
Reversed and case remanded.
B. P. Matocha and J. Fielding Jones, both of Austin, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is robbery from the person and the punishment is twelve years.
A proper analysis of the evidence in this case shows that appellant was a prisoner in the Travis County jail. He assaulted the jailer, following a long and desperate struggle, took from him a bunch of six large jail door keys on two rings fastened together. The keys were used as a weapon of defense by the jailer and subsequently for offensive attack by appellant. At the end of the struggle appellant found himself still in jail but with the keys in his cell.
The indictment is under Article 1408, Penal Code, and it is of the essence of the crime that he take the article involved; that the property belonged to some other person (Smedley v. State, 30 Tex. 215; Barnes v. State, 9 Tex.App.128); and that he intends to appropriate it to his own use. It appears he did not succeed in his purpose to escape jail and that he never in fact gained control of the keys. The officers had him in custody and the keys were in the jail with him. The evidence is silent as to who is the owner of the keys. It was his testimony and all the circumstances indicate that he merely meant to use them to lock the jailer in the cell while he made his escape. Under this state of facts he cannot be held for robbery by violence.
It is alleged he took six keys and the State claims only four in its evidence. This is presented as a fatal variance. We do not sustain the contention. Harris v. State, 34 Tex.Cr.R. 497, 498, 31 S.W. 382; Jones v. State, 64 Tex.Cr.R. 510, 143 S.W. 621; Bracher v. State, 72 Tex.Cr.R. 198, 161 S. W. 124.
For the failure of the State to prove the elements of the crime as defined by statute, the case is reversed and remanded.
On State's Motion for Rehearing.
The State, by its District Attorney, has filed an able and plausible motion for rehearing in which it is seriously contended that we erred in holding the evidence insufficient to show that appellant took the keys by force from the possession of the jailer with the intent to permanently appropriate the same to his own use and benefit and to deprive the owner of the value thereof.
The intent of the accused must be ascertained and determined from his words, acts and conduct. Now, let us examine his acts, words and conduct under the circumstances reflected by this record in an endeavor to arrive at his intent. The accused was confined in jail. He, by force, took the keys to the jail cell from the jailer and nothing else. After he obtained the keys, the jailer went down to the sheriff's office presumably for help. Appellant went back into his cell and placed the keys under the mattress of his cot.
Robbery is but an aggravated species of theft. If property is...
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...v. State, 487 S.W.2d 347, 348 (Tex.Cr.App.1972); see also Banks v. State, 471 S.W.2d 811 (Tex.Cr.App.1971) and Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599 (Tex.Cr.App.1940). 12 In Easley v. State, 82 Tex.Cr.R. 238, 199 S.W. 476 (1917), this Court considered the sufficiency of the evi......
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...provides dramatic evidence that Herring's lawyer prepared himself too poorly to give effective assistance. In Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599 (1904), the State had charged the accused with robbery because he had taken a jailer's keys and hidden them in his bunk. In revers......
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