Brumbelow v. State, 15387.
| Decision Date | 23 November 1932 |
| Docket Number | No. 15387.,15387. |
| Citation | 54 S.W.2d 528 |
| Parties | BRUMBELOW v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.
Dock Brumbelow was convicted of robbery, and he appeals.
Reversed and remanded.
Levi Pressly and W. E. Myres, both of Fort Worth, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is robbery; the punishment, confinement in the penitentiary for ten years.
Fred Eudy, who was an employee of the Coca Cola Bottling Company in the city of Fort Worth, was taking $1,058 in money and $484 in checks to the Fort Worth National Bank. He noticed a Buick car with two men in it following him. When he stopped on a light signal, W. H. Green got out of the Buick and got in his (Eudy's) car. Holding his hand in his pocket, he ordered Eudy to drive to a certain street. Believing he was in danger, Eudy obeyed his command. The Buick car driven by the other man followed them. Green finally ordered Eudy out of the car, and he obeyed, leaving his money and checks in the car. The man in the Buick car was not immediately present when Eudy left his car. When he recovered his car, Eudy found that the money and checks had been taken by Green. On the trial Eudy was unable to identify appellant as the party who was with Green on the occasion in question.
Testifying for the state, Green admitted that he was the man who took the money and checks from the possession of Eudy and declared that he and appellant had previously entered into an agreement to rob Eudy. He said that appellant followed in the Buick automobile while he rode with Eudy to the place where he ordered Eudy to leave the car. He testified that he (Green) had his hand in his pocket at the time, but had no pistol. He testified, further, that after getting the money and checks he took them to his home, where he divided the money with appellant.
In view of the disposition we make of the case, we deem it unnecessary to discuss the testimony offered by the state to corroborate the accomplice witness Green. Suffice it to say that one witness testified, in effect, that appellant told him that he and Green robbed Eudy. Another witness testified that shortly after the robbery appellant bought an automobile from him, paying him $200 in money, and that appellant later returned and asked him not to tell that he had paid him in money. Other statements made by appellant were introduced by the state as tending to corroborate the accomplice witness Green.
It was charged in the indictment that appellant took from the possession of Eudy $1,058 in money "and $484 in checks of the value of $484." Appellant made a motion to quash that part of the indictment charging the taking of the checks on the ground that the checks were not sufficiently described. We think the motion was well taken, and that the court should have treated the allegations as to the checks as surplusage. In Holland v. State, 110 Tex. Cr. R. 384, 10 S.W.(2d) 561, in the opinion on motion for rehearing, this court held that an indictment charging that the appellant took one check of the value of $12.35 failed to sufficiently describe the check, and sustained Holland's contention that the indictment should have been quashed. In the present case the court submitted to the jury, not only the taking of the money described in the indictment, but also the checks. As the allegation regarding the checks does not sufficiently describe same to justify the submission to the jury of the guilt of appellant as dependent upon his taking such checks, if it be desired to seek the conviction of appellant for taking these checks, a new indictment should be returned setting out a more extended description than appears. Apparently the taking of the checks was part of the res gestæ of the taking of the money alleged to have been taken, and, for this reason, evidence of the taking of said checks might be held admissible as part of the transaction; but, if the case is to be tried again on the indictment before us, the question of guilt of appellant, as dependent upon the taking of the checks, should not be submitted to the jury.
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...Court's charge . . .' Appellant argues this language is closely akin to that held to warrant reversal by this Court in Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528. In that case the appellant did not testify in his own behalf and the assistant district attorney, after criticizing th......
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