Glenn v. State

• Decision Date: 14 February 1906
• Parties: GLENN v. STATE.
• Court: Texas Court of Criminal Appeals

92 S.W. 806

GLENN v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1906.

Appeal from District Court, Orange County; W. B. Powell, Judge.

Archie Glenn was convicted of robbery, and appeals. Reversed.

Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of robbery. We do not believe the evidence in this case justifies the conviction.

Briefly stated, the facts are that appellant and the alleged injured party, Anderson, for some length of time had been occupying the same room and sleeping in the same bed. The night preceding the robbery, which occurred early in the morning, they slept together, as usual; nobody being in the room except themselves. Appellant, upon arising, found that $1.25 had been taken from his coat, or jumper, pocket, and immediately accused Anderson of having stolen it. Anderson denied it. Appellant insisted that he had taken it, as no one else had the opportunity, and that he had seen him take it out of his pocket, or at least had seen him with his hand in his pocket. This brought on a discussion between them. Finally, after having charged him with it some three to five times, and his denying it each time, appellant struck Anderson, and Anderson says appellant tried to put his hands into his pockets. Anderson denied getting the money, and finally appellant picked up a hammer lying on the floor and threatened to strike with it unless his money was returned. Whereupon Anderson gave him five 25-cent pieces. This was the amount and kind of money appellant claimed Anderson took. Anderson says that appellant claimed his money was one silver dollar and a 25-cent piece. Appellant testified that the money taken was five 25-cent pieces. Anderson admits having $2 or $3 in his pocket, in addition to that he gave appellant. Appellant was aware of the fact that he had this money in his pocket. Appellant states that Anderson had three silver dollars in his pocket at the time he paid him the $1.25. Pete Rogers and Sam Blackshear were witnesses to most that occurred, and testified, especially Rogers, in detail as to the difficulty and the transfer of the $1.25 from Anderson to appellant, and the accusations that appellant brought against Anderson, and the fact that immediately after this was accomplished each of them went to their respective day's work.

In order to constitute the offense of robbery, in addition to the force or violence that may be used to cause the transfer of the money to the assaulting party, there must be the further question of fraudulent intent, and the appropriation of the money or property taken from the assaulted party. This enters essentially and necessarily as an element into the crime of robbery. Article 856, Pen. Code 1895, provides: "If any person by assault or violence or by putting in fear of life or bodily injury shall fraudulently take from the person or possession of another any property, with intent to appropriate the same to his own use, he shall be punished," etc. It would seem from the very definition of robbery, under our statute, that the fraudulent intent to appropriate the property is an essential element. It would further follow that, in order to constitute robbery, the thing taken must belong to another than the taker, and it would further follow that if the property, though taken from another forcibly, was the property of the taker it is not robbery, although the acts may constitute some other offense, if the taker at the time believed the thing taken was his own. This we understand is a rule sanctioned by the courts of England and America. It is the rule in Texas. Higgins v. State (Tex. Cr. App.) 19 S. W. 503; Barnes v. State, 9 Tex. App. 128; Smedly v. State, 30 Tex. 214. See, also, ...