Johnson v. State

• Decision Date: 07 January 1948
• Docket Number: No. 23820.,23820.
• Citation: 207 S.W.2d 392
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 392

207 S.W.2d 392

JOHNSON v. STATE.

No. 23820.

Court of Criminal Appeals of Texas.

January 7, 1948.

Appeal from District Court, Foard County; C. Y. Welch, Judge.

L. T. Johnson was convicted of robbery, and he appeals.

Affirmed.

No attorney for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for robbery, punishment assessed at seven years in the penitentiary.

The victim of the alleged robbery was Herbert (Red) Johnson, hereinafter referred to as Red.

The testimony of Red, in substance, was: That on a Monday night appellant came to his (Red's) house and wanted him to take appellant to Thalia. Red declined to do this because his car was not in good running order. On the pretext of getting Red to show appellant a "short-cut" through the woods to one Giles' house appellant got Red away from his house, where several others were present, into the dark where they were alone, and then appellant struck Red on the head with a piece of two-by-four, rendering him unconscious. When he regained consciousness he discovered that $115 had been taken from his pocket. As a result of the blow on his head Red went to the hospital where he remained from Monday night until 3 o'clock Wednesday afternoon. The State introduced the following confession of appellant (formal parts are omitted): "* * * On or about the 13th day of January, 1947 I went down to see `Red' whom I have been told is Red Johnson, and asked him to take me to Thalia in his car and he said his car would not run, and then I got scared that he might have a dog and I picked up a scandlan and then I decided to rob `Red' and I hit him with the scandlan and knocked him down and then I felt sorry for him, but I reached in his pocket and took out his money. He had $115.00 and a check for $4.00. I hid $106.00 in the lining of my overcoat pocket and had this money was there when I was arrested and in about a week I told the sheriff where the money was and took it out and gave it to the sheriff. I did not feel very kind toward `Red' because sometime before I robbed him, he was in a crap game where I was playing and I made an `eight' and the other fellows who were fading me, said the dice was tilted and I shot again and come out on `seven' and they took my money, and I continued to shoot the dice and in the game I lost $22.00. When I came out on the seven, it was also tilted just like it was on the eight, and they cotended they won and took my money. Red was fading me too, along with the other fellows when I said I made the `eight'. I had the two by four hid under my coat when I went down there. I had on a brown suit when I went down there. The overcoat that I had the money in was not the one I had on when I robbed `Red'. * * *"

On the trial appellant testified that on Sunday night before the alleged robbery he engaged in a dice — "crap" — game with Red, Alonzo Crisp, and a party referred to as the "house man"; that he had $22 when he entered the game and lost $12 "fair and square," and $10 which "Red and the house man took away from me." The loss of the $10, according to appellant, occurred as follows: He had a $5 bet with the "house man" and a $5 bet with Red that appellant would make a certain point; when he threw the dice he made the point, but Red and the others refused to concede that he had won because the dice were tilted or "cocked"; when he threw again they claimed he had lost although the dice were "cocked" the same way, and they took his $10.

We quote from his testimony on direct examination, as follows:

"* * * They took my money that way. I was not willing for them to take my money. I would have been willing for them to have taken it if I had lost it fair and square. I lost $12.00 fair and square. I did not let them have my money willingly there, I protested them taking it. I said I would have taken my money if I hadn't thought that he had a pistol at that time. `Red' Johnson talked very rough about it. * * * After dark on Monday I went down to `Red' Johnson's house to get him to take me out to my daddy's, or take me home. I picked up something on the way down there, I picked up a two by four (2 × 4) for protection against his dog and him. I did not know that `Red' had a dog but I saw a lot of dogs over there. I have been bit by a dog and that scar is on me.

"If `Red' had taken my money and I thought that he had a pistol the night before, I went back down there because I wasn't a coward. I didn't want him going around and talking about how he took my money like he went around there talking about a fellow that he went and beat up and made him call him `Mr. Red.'

"After I got down there I asked `Red' if he would take me home. He said, `No, his car wasn't running good.' I then asked him in what direction did Giles Williams live. I wanted to attract his attention, as I knew any fool would see a man draw a 2 × 4 out from under his coat. Along about then `Red' had his hand in his pocket like he had it on a pistol, the same way he had it the night he took my money.

"I then hit him with the 2 × 4 and I took his money. I did not know how much money was there and I meant to take only my money, I just wanted my money, which was $20.00; that is what I lost in the game. In other words, `Red' took the $10.00 of mine and the $10.00 I would have won in the game. I did not intend to keep the balance of the money that was in his pocketbook, I intended to keep what was originally...