Powell v. State
| Decision Date | 02 November 1910 |
| Citation | 131 S.W. 590 |
| Parties | POWELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bexar County; Edward Dwyer, Judge.
Ed Powell was convicted of robbery, and appeals. Reversed and remanded.
John A. Mobley, Asst. Atty. Gen., for the State.
Appellant was convicted of robbery; his punishment being assessed at eight years' confinement in the penitentiary.
The alleged injured party, J. C. Hawkins, testifies: That he came into San Antonio on the train, and, after leaving the depot, was trying to find the Globe Hotel with a view of spending the night, but missed it, and went on about a square above the hotel where he met a young man, "a boy like," and asked him in regard to a rooming house. Just at this juncture, appellant came upon the scene, and informed the witness that he could show him a bed that he could get for 50 cents. Witness told him that was more than he was willing to pay. Appellant then told him where he could get a clean bed for 25 cents. They started on going up the sidewalk about a block in a southerly direction where witness proposed that they go into a saloon and get a glass of beer, which they did. While in there, he says an old gentleman came in, and they got to talking about the old Confederate times, when appellant requested the witness to go home with him and he would give him a bed free; that his mother loved to talk to the old veterans. Witness declined, but appellant insisted. They went on and came to another beer joint, and appellant proposed that they go in and get a beer. There was another man with them, a young man; that is, the three were together at the time. They came to a place, and went in to get the beer. The witness, after getting in, said he would take whisky; that he did not care for any beer. Appellant wanted him to smoke a cigar, as they did not have whisky in the house. This witness declined, but drank a bottle of soda water. After drinking this, they started across the street and turned southeast, which was a change from the general direction they had been traveling. After going a little distance, appellant struck him across the nose, and knocked him down, grabbed his throat, and choked him. He tried to holler, but could not on account of the choking. That appellant took all the money he had, and turned him over and stuck his hands in his pocket. That he told appellant that was all the money he had, and appellant jumped up and ran away. He says the blow on his nose caused it to bleed; that he went to seek a policeman, and in doing so went to the police headquarters; and that blood dropped from his nose along the street where he went. There is evidence of blood along the street the witness said he traveled. This is a sufficient statement of the prosecuting witness' testimony without going into minutiæ and details of the examination and cross-examination. He stated appellant got $5 in currency, $3 in silver, and some small change. The witness had been convicted for assault to murder, and served two years in the penitentiary, but had been pardoned. Appellant denied having anything to do with robbing the old man, but admitted that they took a drink of soda water together, for which he, appellant, paid; that he then turned and walked away, and left the old man where they took the soda water; that he had never seen him before that night, and had nothing to do with the robbery if one occurred, and was not present. Without further detail, we think this is sufficient statement of the evidence.
1. The indictment charges appellant with robbery by making an assault upon the person of J. C. Hawkins, and then and there by said assault and violence to the said J. C. Hawkins, and, by putting the said J. C. Hawkins in fear of life and bodily injury, did then and there fraudulently take, etc. The court gave a general definition of robbery as set out in the statute; in fact, copied the entire statute. After giving the definitions, the court, applying the law, instructed the jury as follows: "Bearing in mind the foregoing, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Ed. Powell, in the county of Bexar and state of Texas, on or about the 19th day of November, 1909, did make an assault upon the person of J. C. Hawkins, and did use violence upon the person of said J. C. Hawkins, and did put the...
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Mimms v. State
...is that there is a variance between the proof and the averment charging the assault upon Sallis. Appellant cites Powell v. State, 60 Tex. Cr. R. 201, 131 S. W. 590 Abernathy v. State, 55 Tex. Cr. R. 77, 114 S. W. 1178; Hunt v. State (Tex. App.) 13 S. W. The cases to which the appellant refe......
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Mauldin v. State
...evidence raises only one method of committing a robbery, then the court should only submit that one method to the jury. Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; Palmer v. State, 71 Tex.Cr.R. 335, 160 S.W. 349; 5 Branch's Ann. Penal Code, Sec. 2603, page 32. The trial court here inst......
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Hawkins v. State
...such conduct (Venzor v. State, supra; 31 Tex.Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch's Ann.P.C. (2d ed.), Sec. 2603 at 32). . . .Id. at 6.The principle is the same with or without a timely trial object......
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