Perez v. State

• Decision Date: 18 October 1922
• Docket Number: (No. 6908.)
• Parties: PEREZ v. STATE.
• Court: Texas Court of Criminal Appeals

244 S.W. 548

PEREZ v. STATE.

(No. 6908.)

Court of Criminal Appeals of Texas.

October 18, 1922.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

Jose Perez was convicted of robbery, and he appeals. Reversed and remanded.

Graves & Houtchens and C. F. Clark, all of Fort Worth, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for the offense of robbery; punishment fixed at confinement in the penitentiary for five years.

In the indictment it is charged:

"* * * Did then and there by using and exhibiting a firearm, to wit, a pistol, make an assault in and upon one Jose Ramirez."

A special venire was denied the appellant upon the announcement by the district attorney "that the state would abandon that part of the indictment which charged robbery with firearms and would not insist upon the death penalty, but would try the case upon that phase of the indictment which charged robbery by assault."

Ordinary robbery is defined thus:

"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 by confinement in the penitentiary for life, or for a term of not less than five years; and, when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death, or by confinement in the penitentiary for any term not less than five years." Vernon's Ann. Code Cr. Proc. 1916, art. 1327.

Under this statute, to charge ordinary robbery it is sufficient to charge that an assault was made without stating the instrument or means by which the assault was made, and if it is desired to prosecute for a felony less than capital, the indictment should be so drawn. If, however, it is desired by the pleader to classify the case as a capital felony, then there must be added to the indictment the averment that in committing the assault a deadly weapon was used. If upon the trial of the case the state concludes that it is not desired to prosecute far a capital offense, that part of the indictment containing the additional averment — that is, the averment that a deadly weapon was used, may be abandoned. In the instant case, however, the pleader has chosen to depart from the form ordinarily used, and to charge an assault with a deadly weapon, thus characterizing the case as a capital one....