Briggs v. State

• Decision Date: 18 January 1928
• Docket Number: (No. 11133.)
• Citation: 2 S.W.2d 238
• Parties: BRIGGS v. STATE.
• Court: Texas Court of Criminal Appeals

2 S.W.2d 238

BRIGGS v. STATE.

(No. 11133.)

Court of Criminal Appeals of Texas.

January 18, 1928.

Commissioners' Decision.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

C. A. Briggs was convicted of robbery, and he appeals. Affirmed.

Claude Lawrence, of El Paso, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for ten years.

Appellant presented a written request for a postponement, wherein he stated that he was neither mentally nor physically able to undergo the ordeal of a trial. After hearing evidence, this request was denied, and, as shown in bill of exception No. 1, appellant complains by reason thereof. The qualification appended to the bill states, in effect, that appellant closely followed the proceedings of the trial, and was able to, and did, render advice to his counsel during the course of the trial. The record discloses that appellant testified in his own behalf in a manner which reflected accuracy of memory and keenness of intellect. The evidence heard by the court was sufficient to support the conclusion that appellant was, at the time, both mentally and physically able to undergo a trial. In this condition of the record, we see no error in the ruling of the court.

The indictment names Blas Pina as the injured party; it being alleged that the property involved was taken from his person and possession. Pina worked at the home of S. G. Gonzales, and acted as night watchman when Gonzales was away from home, at which time he had charge of the house and the property therein. On the occasion of the robbery, he was acting in such capacity during the absence of Gonzales and his family. The robbery was accomplished by subduing Pina at the point of a gun, tying and gagging him, and forcing him to go from room to room with his assailants, who, in his presence, took the property involved from various rooms of the house.

Upon these facts, as shown in bills of exception Nos. 2 and 3, appellant insists that there is a variance between the allegation and the proof, in that the proof shows that none of the property involved in the robbery was taken from the person of Pina, as alleged in the indictment. The evidence clearly shows that the property was taken from the possession of Pina. Our statute denouncing robbery includes the taking from the possession as well as from the person. Article 1408, P. C. The statutes of many states are more restrictive than our statute. In the case of Reese v. State, 91 Tex. Cr. R. 457, 239 S. W. 619, in referring to the difference between our statute and that of many other states, this court called attention to the fact that, as to statutes using the more restricted term, it is said:

"The meaning is not that the taking must necessarily be from the actual contact of the body, but it suffices when only under the personal protection. A taking in the presence of an individual put in fear is in law a taking from his person." Bishop's New Crim. Law, §§ 1177 and 1178; State v. Lamb, 242 Mo. 398, 146 S. W. 1169; State v. Kennedy, 154 Mo. 268, 55 S. W. 293; 34 Cyc. p. 1798; Hill v. State, 145 Ala. 60, 40 So. 654; Hill v. State, 42 Neb. 526, 60 N. W. 916; Commonwealth v. Homer, 235 Mass. 526, 127 N. E. 520; State v. Calhoun, 72 Iowa, 433, 34 N. W. 194, 2 Am. St. Rep. 252; O'Donnell v. People, 224 Ill. 218, 79 N. E. 639, 8 Ann. Cas. 126. See note.

In the Reese Case the facts were similar to those revealed here. The injured party was subdued at the point of a pistol, while Reese and his companions abstracted money from a safe. In disposing of the contention of Reese that robbery was not shown because the money was not taken from the person or possession of the injured party, this court referred to the fact that our statute denouncing robbery includes the taking from the possession as well as from the person, and reached the conclusion that the relation of the injured person to the property "was such as to characterize the assault upon him to obtain the property and its acquisition thereby as robbery." We think the principle there announced is applicable here. See, also, Clark v. State, 87 Tex. Cr. R. 107, 220 S. W. 100.

Appellant's next complaint, as shown in bill of exception No. 8, relates to the action of the district attorney in asking him if he and his brother had not been arrested in 1922, in Houston, in connection with the killing of a prohibition officer. Viewing the complaint in the light of the qualification appended to the bill of exception, it appears that appellant objected to the question on the ground that it was immaterial and prejudicial, and that the court thereupon stated to the district attorney that the question was improper, unless the state was prepared to show that appellant had been indicted for the offense mentioned. The jury were immediately instructed by the court not to consider the question for any purpose. Not being required to answer the question, appellant stated: "They didn't have me charged with any such crime at all. I was arrested on that date." The district attorney then asked appellant: "What were you charged with?" Appellant replied: "They put a charge against me later for possession of narcotics, which I had there, they claimed, in the room."

We are of the opinion that, as qualified, the bill fails to manifest prejudicial error. While the question objected to was improper, the prompt action of the court in instructing the jury not to consider it for any purpose, in our opinion, safeguarded appellant against injury. In the case of Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596, in disposing of a similar contention, this court said:

"We cannot lay down a rule that cases should be reversed because improper questions were asked, except in extreme cases,...