Clemmons v. State

• Citation: 45 S.W. 911
• Parties: CLEMMONS v. STATE.
• Decision Date: 18 May 1898
• Court: Texas Court of Criminal Appeals

45 S.W. 911

CLEMMONS v. STATE.

Court of Criminal Appeals of Texas.

May 18, 1898.

Appeal from district court, Smith county; J. G. Russell, Judge.

Sonnie Clemmons was convicted of theft from the person, and he appeals. Affirmed.

W. W. Walling and Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of theft from the person, and his punishment assessed at confinement in the penitentiary for a term of four years; hence this appeal.

The evidence discloses that at Wes Lampkin's barbershop, in the town of Tyler, Lampkin, the prosecutor (Sanders), George Francis, and Amos Ewing were in conversation, when the defendant walked up. Sanders, the alleged owner, remarked that he was going to Dallas, and defendant said, "You have got no money; you will have a long walk," or something to that effect. Sanders drew from his pocket $25, consisting of two $10 bills and one $5 bill, and displayed it, with the remark that "a man don't walk when he's got stuff like this." Defendant immediately snatched the money from the hand of the owner, and so quickly and suddenly as not to allow Sanders an opportunity to prevent him from doing so. Defendant backed away a step or two, Sanders demanding his money. Defendant handed him one $10 bill, and, after being urged to return the balance, handed Sanders the $5 bill; retaining the other $10 bill, and denying having it; asserting that he only had 20 cents, and displaying the 20 cents. He left, and went into a house near by, being followed by the crowd; and Sanders again demanded his money. Appellant again denied having the money, and continued denying until the officer arrived and searched him, and took the $10 bill from him, and returned it to the owner.

The court charged the jury appropriately with reference to taking the money so suddenly as not to allow time for resistance. The defendant, however, asked a charge to the effect that, if the defendant did take the money so suddenly as not to allow time to make resistance before the property was carried away, they should find the defendant not guilty, even though it was fraudulently taken, provided the money was taken with the knowledge of Sanders at the time it was taken, and further, in the same connection, that the law did not define what would be time sufficient for such resistance, but it was a matter of fact, to be determined by the facts detailed in evidence. The court very properly refused to give this charge. It is not necessary that the property be carried away; the law only provides that it shall be taken; and if taken so suddenly as not to allow time for resistance, and reduced to possession, the offense is complete, so far as this phase of the case is concerned. The resistance spoken of in the statute refers to the time preceding the reduction to possession by the taker, and not subsequent to such reduction. It would be difficult to imagine a more sudden taking than that disclosed by the evidence in this case. The owner was holding the money in his hand, and the defendant jerked it from his hand. How there could have been any time for resistance, under this state of facts, we are unable to comprehend. The charge asked was not the law of this case.

The court charged the jury that it is not sufficient for the state to show that defendant stole the money, but the evidence must establish, beyond a reasonable doubt, that the defendant privately stole said money from the person and possession of B. M. Sanders, without his consent, and so suddenly as not to allow the said B. M. Sanders to make resistance before the defendant carried said property from the person and possession of Sanders; otherwise to acquit. This charge was objected to because it is...