Fanin v. State

• Decision Date: 20 February 1907
• Citation: 100 S.W. 916
• Parties: FANIN v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 916

FANIN v. STATE.

Court of Criminal Appeals of Texas.

February 20, 1907.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

Shad Fanin was convicted of robbery, and he appeals. Reversed and remanded.

F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of robbery, and his punishment assessed at five years' confinement in the penitentiary; hence this appeal.

Appellant contends that there was a variance between the proof and the allegation in the indictment. The allegation in the indictment is to the effect that appellant took from the prosecutor one $10 bill. The proof on this point shows that he leveled a pistol on prosecutor, and demanded him to pay him what he owed him, which he claimed was for a week's work, $8. Prosecutor pulled out a $10 bill, and appellant told him to throw it down, which prosecutor did, and appellant then commanded another negro who was present to go and get that changed and bring him back the change. The other negro brought him back the change, and he paid appellant $8, giving the other $2 to prosecutor. This proof shows that while he only claimed $8, he compelled the prosecutor to deliver up a $10 bill, which is according to the allegation of the indictment. If this is robbery, the fact that he gave him back $2 out of the $10 bill which he took from him would make no difference. There would be no variance. Appellant also claims there is a variance, in that the money was not taken directly by appellant, but the prosecutor threw the bill on the floor, and appellant compelled another negro to take it and go get the change. There was no variance as to this matter, and the court properly instructed the jury that a taking in that way would be a taking by appellant.

During the trial while the witness McFarlane for the state was on the stand, he was asked to state if the defendant did not state to him that he had been convicted of a crime and sent to the penitentiary, to which he answered, "Yes." This was objected to by counsel for defendant, on the ground that defendant was not on trial for any other offense than that charged in this indictment; that if the testimony is admissible at all, the records of conviction are the best evidence, because irrelevant and immaterial. The court overruled this objection, and the witness further stated, "Yes, sir; he told me that he had been in the penitentiary twice for burglary. He told me at the time where he went from, and who was the officer who arrested him, but I don't remember the place, nor who was the officer that arrested him." The question of impeachment of a witness by showing that he had been charged with a crime or been guilty of some criminal offense has been before this court a number of times. See Carroll v. State, 32 Tex. Cr. R. 431, 24 S. W. 100, 40 Am. St. Rep. 786, and Brittain v. State, 36 Tex. Cr. R. 406, 37 S. W. 758. A witness can be impeached by showing that he has previously been guilty of some felony, or charged in a legal way with some felony or some misdemeanor importing moral turpitude. In the Brittain Case, it was said that the authorities seem to indicate that this character of testimony can only be resorted to in the cross-examination of the witness, and that in such case the party will be bound by the answer of the witness, and could not contradict him, and such appears to be the rule laid down in that case. But in Tony Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407, the rule above stated appears to be overturned. It was there held admissible that a witness could be impeached by the indictments against him. From the latter view, the writer of this opinion dissented In the present case, we are asked to go beyond any rule heretofore laid down by this court, and to hold that as original testimony against the defendant it can be proved by a witness that he told such witness that he had been previously charged with crime. The character of testimony is not admissible under any authority of which we are advised, and we do not feel authorized to extend the rule any farther.

The court gave the following charge to the jury. "If the said W. T. Smith was indebted to the defendant, he would not have the right to extort money in payment thereof by assault, violence, and by putting the said W. T. Smith in fear of life or bodily injury." This was objected to, on the ground that it does not state the law, but that the contrary is the law, to wit: It is insisted that if the prosecutor Smith was justly indebted to appellant in the amount of money taken from him, it would not be robbery for complainant to constrain him to pay it by force and violence; that it would not be depriving the prosecutor of his property. On this subject, we are referred to a number of cases, both in this state and out of it. See Smith v. State, 81 S. W. 712, 11 Tex. Ct. Rep. 1023, Bollen v. State, 86 S. W. 1025, 13 Tex. Ct. Rep. 148, and Glenn v. State, 92 S. W. 806, 15 Tex. Ct. Rep. 878. In the Smith Case, supra, the parties were shooting craps, and a $5 bill was up as the stake. The prosecutor claimed that the dice were cocked, and another throw was made. The prosecutor lost, and appellant went to get the money, and prosecutor started to pull his gun, and appellant drew his first, and took the bill. A charge was asked in favor of appellant presenting this view of the case for acquittal, which was refused. This was held error. As we understand it, the court decided that appellant, according to his testimony, having a right to the bill, and having procured possession of it, after the manner stated, that it would not constitute robbery. In Bollen's Case, supra, it was simply held that the court should have instructed the jury that the property must have been taken fraudulently before there could be robbery. In the Glenn Case, supra, the following was the state of facts: Appellant and prosecutor slept in the same room. Appellant claimed the next morning that prosecutor had stolen $1.25 from him; that he saw appellant put his hand in his pocket, and his money was gone, and, under these circumstances, he, by force, compelled appellant to hand him over the money, which he claimed he had stolen from him. It was held on that state of facts that there was no robbery. In these cases, however, it seems that there was a claim to the specific property, and not a mere debt, as is presented here. In 24 Amer. & Eng. Ency. of Law (2d Ed.) p. 1004, we find it to be stated that: "As it is essential, to constitute robbery, that the thing taken must belong to another than the taker, it follows that though the property is taken from another forcibly, or by putting in fear, this is not robbery, whatever else it may be, if the taker at the time has a bona fide belief that the thing taken is his own." Under this proposition a number of authorities are cited, including cases from various states, as well as English common-law cases. These cases appear...