Bybee v. State

• Decision Date: 26 October 1932
• Docket Number: No. 15484.,15484.
• Parties: BYBEE v. STATE.
• Court: Texas Court of Criminal Appeals

54 S.W.2d 142

BYBEE v. STATE.

No. 15484.

Court of Criminal Appeals of Texas.

October 26, 1932.

Rehearing Denied November 23, 1932.

Appeal from District Court, Cottle County; Isaac O. Newton, Judge.

Hilton Bybee was convicted of robbery, and he appeals.

Affirmed.

Jeff A. Fowler and B. F. Reynolds, both of Throckmorton, and Otis Rogers, of Fort Worth, for appellant.

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

MORROW, P. J.

The offense is robbery; penalty assessed at death.

The subject of the robbery is Ernest Slape, whose testimony is summarized as follows: While Slape was sitting at his house, the appellant appeared with two pistols, one in each hand. He entered the door and said: "You are the guy we want; get out of here. You get out of here, or I'll knock you in the head with one of these guns."

When first ordered to get out, Slape hesitated. The appellant's brother, who was with him, was also armed with and exhibited a pistol. After running a short distance, Slape was shot between the shoulders and fell. He was not positive whether the appellant or his brother fired the shot, though it was his best judgment that the appellant was the one who shot him. As Slape lay upon the ground, helpless but not unconscious, the appellant and his brother took from Slape's pockets the money he had, which was about $104. As Slape fell, the appellant remarked: "They don't go far when this hits them." After taking the money, the appellant and his brother fled. They made their departure in an automobile which was standing nearby. Slape had seen the appellant before, and was positive in his recognition and identification of both the appellant and his brother.

The bullet fired by his assailant entered Slape's back and lodged in his neck, from which it had not been extracted at the time of the trial.

When the appellant and his brother appeared, the latter commanded that the persons present get in the house, while the former commanded Slape to get outside. When asked by Slape what they wanted, the appellant replied, "We want you."

The appellant introduced no testimony.

In the record there is presented no complaint of the manner of trial; that is to say, there are no exceptions to the rulings of the court in the reception or rejection of evidence.

In his direct examination, Slape testified that there was taken from his possession by the appellant and his associate the sum of $104; that part of the money was taken from one pocket and part from the other, the appellant and his brother acting together in taking the money. On cross-examination, the witness said he could not be sure as to the exact amount of money in his possession, but that he had $100 in his left pocket and three or four dollars in his right pocket, all of which was taken from him.

Appellant requested an instruction of acquittal upon the ground of variance based upon the discrepancy between the amount of money which Slape claimed was taken from him.

In charging the jury, the court used the following language: "* * * Did unlawfully and willfully in and upon Ernest Slape make an assault and did then and there by said assault and violence and by then and there using and exhibiting a firearm to-wit, a pistol, fraudulently and against the will of the said Ernest Slape, take from the person and possession of Ernest Slape, $104.00 in money or any sum of money."

The contention that there was a variance between the amount of money taken and that averred seems not supported by the evidence; that is to say, the injured party testified that the money taken from him amounted to $104. That, at least appears to have been his best judgment, although, on cross-examination, he conceded that it might have been one or two dollars less than that amount. Nothing in the evidence would have authorized a peremptory charge to the effect that there was a variance. For that matter, it is thought that, if there were a conceded discrepancy of a dollar or so between the amount averred and that taken by the appellant, it would not be fatal to the conviction.

In the case of Harris v. State, 34 Tex. Cr. R. 497, 31 S. W. 382, the accused was convicted of robbery. The indictment described the property in general terms as $20 in paper money, currency of the United States. The proof showed that the money taken was a $10 bill and a $5 bill. The court held that there was no variance. The same principle has been reasserted in many other cases, among them Taylor v. State, 89 Tex. Cr. R. 618, 232 S. W. 525, in which numerous authorities are collated. See, also, Holland v. State (Tex. Cr. App.) 51 S.W.(2d) 340.

Exception to the charge was made because of the use of the words "or any sum of money." No error is perceived in the action of the court in refusing to instruct a verdict of acquittal and in refusing to amend his charge in response to the exception mentioned.

The matters last mentioned are also brought forward in the motion for new trial, which was properly overruled.

The point made in the motion for new trial that the venue was not proved is not tenable, as it does not appear that any issue as to venue was made upon the trial. Under such circumstances, the venue is presumed. See article 847, C. C. P. 1925.

In his brief the appellant makes the following contention:

"Appellant relies solely upon the insufficiency of the evidence to support the verdict of the jury, and asks the court's careful consideration in applying the evidence to the allegations of the indictment. * * *

"Analyzing the evidence, we find that appellant committed an assault with intent to murder. After the assault was complete and the victim was apparently dead, appellant robbed him. No fire-arm was exhibited at the time of the...