Scales v. State

• Decision Date: 21 February 1912
• Citation: 144 S.W. 263
• Parties: SCALES v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 263

SCALES v. STATE.

Court of Criminal Appeals of Texas.

February 21, 1912.

Appeal from District Court, Jones County; Jno. B. Thomas, Judge.

H. S. Scales was convicted of robbery, under article 857 of the Penal Code of 1911, and he appeals. Reversed, and prosecution dismissed.

Woodruff & Woodruff, J. B. McMahon, Chapman & Coombs, and Lively, Nelms & Adams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of robbery, under article 857 of the Penal Code. An inspection of this article will show that this peculiar species of robbery is by means of threatening to do some illegal act, whereby something of value is secured from the threatened party. The language used by appellant was directed to W. W. Green, and is as follows: "Unless you pay us $500 we will ruin your character, and also the girl's character, and prosecute you." Upon this language the charging part of the indictment is as follows: Appellant "did then and there unlawfully threaten to do an illegal act, injurious to the character of W. W. Green, to wit: The said H. S. Scales did then and there threaten and say to W. W. Green in substance: Unless you (meaning thereby W. W. Green) pay us $500 (meaning, by the word `us,' H. S. Scales, F. M. Grundy, and S. A. Haney), we will ruin your character, and also the girl's character, and prosecute you (meaning by the word `girl' Miss Eva Kiker, and meaning by the term `ruin your character and prosecute you,' that the said H. S. Scales and the said F. M. Grundy and the said S. A. Haney would unlawfully and wrongfully accuse the said W. W. Green and Miss Eva Kiker of illicit carnal intercourse, and that they would unlawfully and wrongfully prosecute the said W. W. Green and Miss Eva Kiker for the offense of adultery, the said W. W. Green being then and there a married man). And the said H. S. Scales did then and there, by means of said threat to do said illegal act, fraudulently induce the said W. W. Green to deliver to him, the said H. S. Scales, and his confederates, the said F. M. Grundy and S. A. Haney, $300 in current lawful money of the United States of America, a better description of which is unknown to the grand jury and cannot be given, the said money then and there being the corporeal personal property of the said W. W. Green, and with intent then and there on the part of him, the said H. S. Scales, to deprive the said W. W. Green of the value thereof, and with intent on the part of him, the said H. S. Scales, to appropriate the same to his own use and benefit."

Motion to quash and motion in arrest of judgment were presented and urged in the court below, which motions were overruled. These motions attacked the indictment, first, because the same does not allege that appellant and his confederates falsely accused W. W. Green and Miss Eva Kiker either of having illicit carnal intercourse with one another or of the offense of adultery; second, because the indictment charges that appellant and his confederates threatened to prosecute Green for the offense of adultery, and nowhere negatived the fact that said Green and Miss Kiker were guilty of adultery, and the constituent elements of adultery are not alleged in the indictment. It is also insisted, in this connection, that, while the indictment alleges that Green was a married man, it does not allege...