Rylee v. State

• Decision Date: 04 January 1922
• Docket Number: (No. 6389.)
• Parties: RYLEE v. STATE.
• Court: Texas Court of Criminal Appeals

236 S.W. 744

RYLEE v. STATE.

(No. 6389.)

Court of Criminal Appeals of Texas.

January 4, 1922.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

G. H. Rylee was convicted of robbery, and he appeals. Affirmed.

H. H. Cooper, of Houston, for appellant.

E. T. Branch, Cr. Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for robbery. Punishment five years in penitentiary. G. H. Rylee and D. C. Cogdell were jointly indicted and tried for the robbery of Mrs. R. B. Hemphill and Mrs. George Griffin. Cogdell was acquitted. Rylee was convicted and his punishment assessed at five years in the penitentiary, from which he prosecutes this appeal.

Appellant's first bill of exceptions consists wholly of questions and answers. It will not be considered in this form. Article 744, C. C. P.; article 2059, R. S.; Vernon's C. C. P. p. 537, note 21; No. 6407, Jetty v. State (opinion November 30, 1921) 235 S. W. 589; No. 6447, Parker v. State (opinion December 7, 1921) 238 S. W. ___; Hornsby v. State (opinion December 14, 1921) 237 S. W. 940; Johnson v. State (opinion December 14, 1921) 238 S. W. ___; No. 6443, McDaniel v. State (opinion December 21, 1921) 237 S. W. 292.

The court was not in error in declining to give special charges brought forward in bills of exceptions Nos. 2 and 4. In so far as applicable, the same subject had been covered in the eighth paragraph of the general charge and the first special charge given at appellant's request.

Complaint is made at the refusal of the court to give a special charge to the effect that before a conviction could be had the evidence must show beyond a reasonable doubt that the property was taken by "force such as to overcome the resistance of which the parties from whom it was taken were capable of offering," or by such threats or violence as to put them in fear of life or bodily injury. Contention is made in appellant's brief that if property is taken by actual force, without engendering fear, then it must be such force as the party is incapable of resisting before it would be "robbery," under our statute. In support of this proposition we are cited to Tones v. State, 48 Tex. Cr. R. 368, 88 S. W. 217, 1 L. R. A. (N. S.) 1024, 122 Am. St. Rep. 759, 13 Ann. Cas. 455; Walters v. State, 56 Tex. Cr. R. 10, 118 S. W. 543; Leonard v. State, 56 Tex. Cr. R. 307, 120 S. W. 183. The Walters Case was for "assault to rob." It was there said:

"If the facts in this case had shown that appellant secured the diamond stud, it would have constituted theft from the person. Failing to so show, it does not constitute an assault to rob."

In Leonard's Case the defendant was charged with and convicted of theft by conversion. The principle asserted as being the law in the instant case was not discussed. The Tones Case, supra, is the only one cited by appellant in which the proposition is discussed, and to our minds is against his contention. It rather supports the proposition that, an assault or actual violence being shown, then the degree of force is immaterial, so long as it is sufficient to compel one to part with his property. 34 Cyc. 1799; State v. Parsons, 44 Wash. 299, 87 Pac. 349, 7 L. R. A. (N. S.) 566, 120 Am. St. Rep. 1003, 12 Ann. Cas. 61; Williams v. State, 51 Tex. Cr. R. 361, 102 S. W. 1134, 123 Am. St. Rep. 884; Clark v. State, 87 Tex. Cr. R. 107, 220 S. W. 100; Horn v. State, 89 Tex. Cr. R. 220, 230 S. W. 693.

The state's evidence shows that Mrs. Griffin and Mrs. Hemphill were out driving in an automobile. While going...