Bryant v. State

• Decision Date: 09 November 1932
• Docket Number: No. 15473.,15473.
• Parties: BRYANT v. STATE.
• Court: Texas Court of Criminal Appeals

55 S.W.2d 1037

BRYANT v. STATE.

No. 15473.

Court of Criminal Appeals of Texas.

November 9, 1932.

Rehearing Denied January 11, 1933.

Commissioners' Decision.

Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.

Johnnie Bryant was convicted of robbery with firearms, and he appeals.

Affirmed.

King, Mahaffey, Wheeler & Bryson, of Texarkana, Tex., and John N. Cook, of Texarkana, Ark., for appellant.

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

CHRISTIAN, J.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for twenty-five years.

H. M. Brock, the injured party, was cashier of the Cotton Oil Company of Texarkana. About two years before the robbery appellant had had a transaction with Mr. Brock, in which he had bought some cotton-seed hulls. It appears that Mr. Brock had not seen appellant since the occasion last mentioned until the day of the robbery. Touching the circumstances surrounding the commission of the offense, Mr. Brock testified on direct examination, in substance, as follows: He was in his office at work when appellant entered the room, held a pistol on him and directed him to "stick 'em up." Appellant was holding the pistol in his left hand and in his right hand he had a four or five pound paper bag. Complying with appellant's request, the witness put his hands up. Appellant handed him the paper bag, directing him to get the money out of the safe and put it in the bag. Complying with appellant's request, he placed thirty or forty dollars in the bag, and handed it to appellant. At this point we quote the testimony of the witness as follows: "I had the sack in my left hand. At the time I handed him the sack he was standing three or four feet from the safe,—hardly that far. I was standing between him and the safe. He was hardly that far, (indicating). I could reach him when I turned. When I handed him the sack I handed it to him with my left hand. When I handed him the sack he reached out and took hold of it. He took the sack with his right hand. I said that he took the sack when I handed it to him. You ask me what I did with the sack. I turned to hand it to him. Yes, I handed it to him. * * * He took hold of the sack,—we both had hold of the sack. * * * I turned loose of the sack. I did that after he took hold of it. The pistol during that time was in his left hand pointing at me. During the time this was going on he was cursing me and telling me he was going to kill me and trying to intimidate me I would think. Yes, he was cursing me and telling me to hurry. * * * Well at the time I handed him the sack I grabbed the gun and struck him, with my left hand. I grabbed the gun with this hand (indicating) and turned the sack loose and hit him on the chin enough to start him backward and across the desk, the typewriter desk and flat top desk. I grabbed the gun with my right hand. When I grabbed the gun we went over the desk. I was right against him. We had the gun, he in his left hand and I with my right hand, which discharged and went through my index finger of my right hand. I got the gun away from him and hit him over the head with it. * * * The sack with the money in it was lying there on the desk and went with us as we went over. After I got the gun out of his hand and hit him I told him I was going to kill him and he begged me not to,—I don't know,—I hit him over the head again and Mr. Hunt walked in. * * * I took the money that was in the sack and put it back in the safe. * * * You ask me why I got the money and gave it to him,—because he had a gun on me and told me to or he would kill me. I was in fear of my life or bodily injury or I would not have given him the money."

On cross-examination the witness testified that when appellant entered the room and pointed the pistol at him he told appellant to come around in the office, having in mind at the time not to let appellant get the money, but to keep him from it; that he did not determine to take hold of appellant in an effort to recover the money until he was handing appellant the sack. We quote from his testimony on cross-examination, in part, as follows: "As he reached and took hold of the sack we both had hold of the sack for a split second, naturally. When he got hold of the sack, at the same time I grabbed the gun. You ask me if it is not true that I did not turn loose of the sack until I grabbed the gun. Well, this all happened within a split second, the whole movement. As far as I recollect now when he reached out for the sack I undertook to hand him the sack and in that very same act I grabbed for the gun. That was when I saw my opportunity. * * * When I handed him the sack and he took hold of it, naturally both of us had hold of it for a short time together. At that very same time, while we both had hold of the sack, that is when I grabbed the gun and turned loose, within the next split second, the sack and hit him with the hand that had the sack."

On redirect examination the witness testified as follows: "He just reached over the back and got hold of the money like this, (indicating). At the same time I did like this (indicating) and we went over the desk. After I hit him with my left hand, he had hold of the money when I turned it loose. You ask me if I left it in his right hand. That is the hand he took hold of it with. When I hit him with my left hand I had then turned the money loose. At the time I hit him with my left hand he had hold of the money I presume. You ask me if I know where it was. I turned the money loose as he took hold of it. That was the last time I had my eyes on the money. The next time I saw it it was lying on this desk."

Appellant insists that the evidence is insufficient to support a conviction for robbery, his position being that the proof fails to show that the money was brought under his dominion and control. The court submitted a charge covering the law of assault with intent to rob. Pursuant to appellant's request, the court instructed the jury as follows: "Now unless you believe from the evidence beyond a reasonable doubt that the defendant, Johnnie Bryant, actually secured the absolute dominion or the absolute control from H. M. Brock, of the sum of ($30.00) thirty dollars in money, or any sum of money on or about the 24th day of December, 1931, as alleged in the indictment, you will find the defendant not guilty of robbery and so say by your verdict."

In his Annotated Penal Code, section 2427, Mr. Branch states the rules as follows: "To constitute a taking, the property must be brought under the dominion and control of the defendant with power to take it into his manual possession; if the property is attached to the owner or to something else the taking is not complete if the attempt to take it is interrupted before it is severed or detached."

In support of the text the following authorities are cited: Rodriquez v. State (Tex. Cr. App.) 71 S. W. 596; Tarrango v. State, 44 Tex. Cr. R. 385, 71 S. W. 597; Herr v. State, 52 Tex. Cr. R. 53, 105 S. W. 190; Walters v. State, 56 Tex. Cr. R. 10, 118 S. W. 543; Clark v. State, 59 Tex. Cr. R. 246, 128 S. W. 131, 29 L. R. A. (N. S.) 323.

We deem the evidence sufficient to support the finding that appellant had brought the money under his dominion and control. The injured party testified, in effect, that he delivered the money to appellant because he was afraid he would shoot him. He testified, further, that he handed the money to appellant and turned loose of the sack at the time he grabbed the...