Gizzo v. State
| Decision Date | 10 November 1954 |
| Docket Number | No. 27093,27093 |
| Citation | 272 S.W.2d 898,160 Tex.Crim. 593 |
| Parties | Robert James GIZZO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Piranio, Piranio & Fults, By Angelo Piranio, Dallas, for appellant.
Henry Wade, Criminal Dist. Atty., James K. Allen, Asst. Dist. Atty., Charles S. Potts, Asst. Dist. Atty., Dallas, Wesley Dice, State's Atty., Austin, for the State.
Appellant was charged by indictment with the offense of robbery alleged to have been committed on March 13, 1953, by assault and violence and by putting in fear of life and bodily injury one, George T. Finney, alleging that he took from the person and possession of the said Finney and against his consent two bill-folds, one lot of assorted narcotics and $14 in current money of the United States of America.
The facts proven on the trial show that on the day in question Mr. Finney opened the Harold Lloyd's Prescription Pharmacy in Dallas, Texas, about eight o'clock in the morning; that soon thereafter the appellant walked into the place of business and by exhibiting a knife with a blade approximately ten inches in length he forced Mr. Finney to place in a brief case one lot of assorted narcotics, containing about forty-four bottles. Appellant then took one bill-fold from Mr. Finney and $10 in current money from the cash register in the store. While engaged in this act a further person, Mr. Lloyd, walked in and appellant took from him (Lloyd) without his consent, his bill-fold and $4 in money. Both of these men were then forced to lie down and were tied together with a wire. Appellant then left the pharmacy.
Mr. Finney and Mr. Lloyd both testified that they were in fear of their lives at the time that appellant used this knife and threatened them therewith.
On the same day the appellant was seen in the town of Lewisville in Denton County (about fourteen miles from the City of Dallas) by Mrs Bessie League who was the proprietress of a tourist court. At that time the appellant gave his name as R. J. LaVelle. She became suspicious of the appellant after he had been at her tourist court for awhile. He was then located in Cabin No. 5. She summoned Harold Tanner who was the city marshal in the town of Lewisville. He appeared at her invitation and knocked on the door of Cabin No. 5. Appellant, who was located therein, then invited the officer to come in. The officer sat down and had a conversation with the appellant. He observed a box containing two bill-folds and the driver's license of Mr. Finney as well as that of Mr. Lloyd. He also observed an open brief case containing a number of bottles which the officer took to be narcotics. He then told the appellant that he would like for him to come down to the city hall and get matters straightened out. He took the appellant along with the box containing the bill-folds and driver's licenses and the brief case in which there were forty or more bottles of narcotics. The officer then notified the Federal Narcotic Agent relative thereto.
Soon thereafter a Deputy Sheriff from Dallas County had a conversation with the appellant, after which the officer went to the appellant's car and there found under the seat a knife which was later identified by Mr. Finney and Mr. Lloyd as being very similar to the one that was used in the holdup.
Appellant received a penalty of twenty-five years in the penitentiary from which he appeals and presents the following bills of exception:
Bill of Exception No. 1 relates to an objection to the court's charge, the gist of the objection being that the jury were therein charged that they could take into consideration the fact that appellant did fraudulently and without the consent of and against the will of the said George T. Finney take from the person and possession of the said Finney the personal property or any part thereof described in the indictment, it being the contention of the appellant that it was necessary that the State prove that appellant took all the property that was alleged to have been taken and that it would not be sufficient if it were shown that he had taken only a portion of the property thus so charged. It is the appellant's contention that the State had charged that he took two bill-folds, $14 and a quantity of narcotics, whereas the testimony showed that he only took from Mr. Finney one bill-fold and $10 in money as well as other articles. We think that the decisions are plain and uncontradicted that it is only necessary that a portion of the property thus charged be taken, and it is not necessary to show the theft of all the property thus charged. See Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599, and many cases there cited; also Maloney v. State, Tex.Cr.App., 45 S.W. 718, 719, in which we held:
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