Ellsworth v. State
| Decision Date | 11 October 1922 |
| Docket Number | (No. 7096.) |
| Citation | 244 S.W. 147 |
| Parties | ELLSWORTH v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
C. P. Ellsworth was convicted of robbery, and he appeals. Reversed and remanded.
J. F. Hair, of San Antonio, and R. A. Brooks, of Bastrop, for appellant.
R. G. Storey, Asst. Atty. Gen., for the State.
Appellant was convicted in the district court of Bastrop county of robbery and appeals from a judgment giving him five years in the penitentiary.
There are numerous bills of exception in the record, none of which present reversible error save such as are herein discussed.
On the night of the alleged robbery, a crap game was in progress in a building in the town of Smithville, Bastrop county. There appears to have been 10 or 15 men present and participating, among whom was appellant. The door opened and a masked man entered, flourished a pistol, and ordered hands up. State witnesses testified that about this time appellant also drew a pistol. No one testified to any use of the pistol by appellant during the entire occurrence. He did not present same and did not point it at any one or make any threats to use it, nor did he order or command any of the party to deliver up any money. The record reflects the fact that upon a table in the center of the group of players there was a quantity of money. The masked man advanced to the table, pointing his pistol first at one and then another of the crowd, made a snatch or two at the money on the table, according to the testimony, and also took money from the hands of persons around the table. He then started backing back toward the door; but, observing some money in the hands of one of the crowd, he returned and took that also. He then backed out the door and left. During his presence and while he was getting the money, the only words or actions attributed to appellant by any of the witnesses were that when one Carter asked, "What in the hell is all this?" appellant replied, "It is a holdup, better stick 'em up," and about the same time during the progress of the transaction, according to certain witnesses, appellant reached over to the table and took therefrom some money. State witness Carter said that the money appellant took from the table was silver money; and this witness also said that appellant held up his hands at the order of the alleged robber, along with the other persons present. No witness testified that the money taken by appellant belonged to any one other than appellant himself. No one attributed any effort on the part of appellant to assault him or any one else, or claimed that by any display of a pistol on the part of appellant he was frightened or induced to part with his money. There is other testimony that after the robbery was over and search was being made for the robber, appellant was seen at the depot with a man named John Dick, at which time appellant had a pistol in his hand. There is other testimony that a day or two later the sheriff searched appellant's room and found in a drawer thereof two pistols, one of which was claimed and identified by a man named Hand as his, and which was turned over to Hand by the sheriff. The other of said pistols was claimed by appellant himself. Another witness testified that on the night of the alleged robbery he saw appellant and John Dick near or in the section foreman's shanty in the railroad yards, and that appellant told him that he was going down to the crap game and break it up. Witness understood from that that appellant was going to play in the game. Three of the state witnesses who were present at the time of the robbery testified that the man who came in with the pistol and ordered the parties to hold up their hands and who took the money was John Dick. They claimed to recognize him from his voice and a limp in his gait. The day after the alleged robbery John Dick went to San Antonio, where he was arrested and $118 found on his person. When appellant was arrested a day or two after the occurrence, $116 was found on his person. The exact amount of money taken in the robbery is not stated, nor did any one attempt to identify the money found on appellant or Dick, as being theirs. Mr. Hand testified that on or about the day of the robbery he lent a 38-caliber pistol to Dick, which he afterwards got back from the sheriff.
We have stated this much of the evidence for the purpose of making...
To continue reading
Request your trial
-
Ransonette v. State
...of the trial court's failure to charge on circumstantial evidence. See also Burrell v. State, 18 Tex. 713 (1857); Ellsworth v. State, 92 Tex.Cr.R. 334, 244 S.W. 147 (1922); Denny v. State, 473 S.W.2d 503 Similarly, in the case before us the evidence against this appellant is manifestly circ......
-
Dickson v. State
...him. In urging that error lay in the court's refusal to give a charge on circumstantial evidence, appellant cites Ellsworth v. State, 92 Tex.Cr.R. 334, 244 S.W. 147, in which this Court held the issue of whether the accused was a principal in a robbery necessitated a charge on circumstantia......