Benson v. State, 17109.

• Citation: 79 S.W.2d 122
• Decision Date: 16 January 1935
• Docket Number: No. 17109.,17109.
• Parties: BENSON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 122

79 S.W.2d 122 BENSON
v.
STATE. No. 17109. Court of Criminal Appeals of Texas. January 16, 1935. Rehearing Denied February 27, 1935.

Appeal from District Court, Upshur County; Walter G. Russell, Judge.

A. R. Benson was convicted of robbery, and he appeals.

Affirmed as amended.

Shead & Smith, of Longview, for appellant.

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

HAWKINS, Judge.

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

The indictment alleges that appellant by assault and violence took from R. C. Barnwell a diamond stud and a diamond ring. The record contains no bills of exception. The only question before this court is the sufficiency of the evidence to support the verdict. We deem it unnecessary to make an extended statement of the testimony. Barnwell, the injured party, positively identified appellant and another as the two men who committed the assault upon him and took from him the property heretofore referred to. Appellant did not testify himself, but introduced testimony which raised an issue of alibi, which issue was properly submitted to the jury, and whose finding was adverse to appellant on that point. The evidence appears ample to support the conviction.

We notice from the transcript that there is either an omission in copying the sentence, or the court failed to give application to the indeterminate sentence law, as required in article 775, Vernon's Ann. C. C. P. The sentence will be amended so as to direct appellant's confinement in the penitentiary for not less than five years, nor more than fifteen years.

As so amended, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant's motion for rehearing asserts that the indictment herein is bad for two reasons, viz.: It alleges that the crime was committed on the ____ day of January, 1934; also fails to allege that said crime was committed in Upshur county. The indictment recites in its beginning that the grand jurors for the county of Upshur, state of Texas, present in and to the district court of said county, that on or about the ____ day of January, 1934, and anterior to the return of the indictment, A. R. Benson in said county and state, did, etc. The indictment was returned April 18, 1934. This sufficiently charges that the crime was committed in Upshur county.

In some of the early cases decided by this court, and the Supreme Court when it had criminal jurisdiction, it was held that there must be an allegation of a day certain, as the time of the commission of the offense. State v. Randle, 41 Tex. 292; State v. Slack, 30 Tex. 354; State v. Johnson, 32 Tex. 96;

Page 123

State v. Eubanks, 41 Tex. 291. However authorities equally ancient and respected laid down the rule that it was sufficient to allege that the crime was committed "on or about" a certain date. State v. McMickle, 34 Tex. 676; State v. Elliot, 34 Tex. 148; State v. Hill, 35 Tex. 348, 349; Johnson v. State, 1 Tex. App. 118. Without exception, as far as we know, the rule has been laid down and adhered to that the exact date laid in an indictment need not be proved, and all the cases on the point hold unanimously that such averment is sufficiently met by proof of the commission of the offense as of any date anterior to the return of the indictment...