Temple v. State

• Decision Date: 12 November 1919
• Docket Number: (No. 5538.)
• Citation: 215 S.W. 965
• Parties: TEMPLE v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W. 965

TEMPLE v. STATE.

(No. 5538.)

Court of Criminal Appeals of Texas.

November 12, 1919.

Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.

Abel Temple was convicted of robbery, and he appeals. Reversed.

Matt Cramer, of Bay City, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant appealed from a judgment condemning him to the penitentiary for five years for the offense of robbery.

The appellant and Walter Dorsey were gambling, and the appellant lost some money, and it is the theory of the state that the appellant regained the money, and in doing so made an assault upon Dorsey under circumstances rendering him guilty of the offense charged. The parties were sitting on the floor, and the prosecuting witness stated in his evidence that he had the money which he had won from appellant and some of his own money "right between my legs, up against the crotch"; that, while he was preparing to pick up the money, the appellant demanded it, and picked it up, and backed out of the door, exhibiting a pistol, by pulling it part of the way out of his hip pocket. Appellant and other witnesses present denied the exhibition of the pistol, or its possession by the appellant. Appellant's theory was that Dorsey, who was dealing, represented to him that there were 40 cards in the deck, and that he believed that to be true, when, as a matter of fact, it was false, Dorsey having but 36 cards in the deck. The evidence was undisputed that to play the game 40 cards were necessary, and appellant contended that by reason of the fraud he was cheated out of his money. He also denied any assault, and claimed that, when he discovered fraud, he took back his own money, which was lying on the floor between the legs of Dorsey; that he got no money but his own, and not quite all of that.

The appellant by a special charge sought to have the jury instructed upon his theory of the case, and presents here the view that, if the appellant was induced to part with his money and place it under the control of Dorsey through his deception and fraud, he would not be guilty of the offense of robbery in regaining possession of it, though in doing so he used force. We believe this to be sound. This is a different proposition from that asserted in Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368, and others, holding that, where one playing at a gambling game loses money under the rules of the game, and surrenders it to his adversary, he may be guilty of robbery when he regains it by force. Under the circumstances named in Blain's Case and Carroll's Case, 42 Tex. Cr. R. 30, 57 S. W. 99, the injured party, having won the money according to the rules of the game and been put in possession of it, had under the decisions such title to it as brought him within the terms of the robbery statute. Article 1327. In the instant case, if appellant...