Tones v. State

• Decision Date: 07 June 1905
• Citation: 88 S.W. 217
• Parties: TONES v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

88 S.W. 217

TONES v. STATE.^*

Court of Criminal Appeals of Texas.

June 7, 1905.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

John Tones was convicted of robbery, and appeals. Affirmed.

E. J. Smith, F. N. Roberts, and R. H. Thompson, for appellant. Galloway & Vowell and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of robbery, and his punishment fixed at confinement in the penitentiary for a term of nine years; hence this appeal.

The state's case, briefly stated, is as follows: H. S. Rich was constable of precinct No. 1, at Sherman, and Marion Nicholas was also a resident of Grayson county. Nicholas suspected that some robberies and violations of the local option law were being committed in the city of Denison. He conferred with Rich about the matter, and, as a result of their conference, Rich agreed to get a man to see if he could not catch up with the parties committing said offenses. He selected prosecutor Joe Richards, a painter and a resident of Sherman. On the day preceding the night of the alleged offense, these three parties met in Sherman and gave Richards $40, $38 of which was furnished by Nicholas, and consisted of one $10 bill, and five $5, and three $1 bills of United States currency. The numbers of all these bills were taken on a slip of paper by the parties at the time. Besides, they were marked, and from some of the bills small portions were torn off. The remaining $2 in silver was furnished by Rich, constable. It was understood that Richards was to go to Denison that night, buy all the whisky he could with the silver money, but was not to spend the currency. These bills were placed with him to be used to detect any parties who might rob prosecutor, Richards, should he be robbed. In pursuance of this agreement, Richard and Nicholas went that evening or night to Denison. After getting there, Nicholas separated from prosecutor Richards. Richards immediately proceeded to the execution of the plan, went to several joints, drank some beer and a drink of whisky, and bought two pint bottles of whisky at two different joints. Subsequently he was seen on the street by appellant, who was a policeman of Denison, and by Finley; also a policeman. He was at the time either drunk, or acting in a manner to suggest he was drunk. They accosted him and charged him with being intoxicated. He seems to have denied it, stating he could take care of himself and had money to pay his way, and that he was from the territory. They arrested him, however, and marched him to the jail, one on either side of him. When they got there, they took him inside, stood him against the wall, held his arms up, and searched him. They took from him the roll of currency bills before mentioned, 55 cents in silver, a pocketbook, and the two pint bottles of whisky. They deposited with the jailer the two pints of whisky, the purse, and 55 cents. The balance of the money they did not deposit. The next morning, on complaint of Richards, appellant and his co-defendant, Finley, were arrested and searched. On appellant's person was found four $5 bills and one $1 bill, and on Finley was found a $10 bill and a $5 bill and one $1 bill. All of these bills were thoroughly identified by witness Rich as the same currency bills that he and Nicholas had given to prosecutor Richards on the evening before. All of said currency that had been given said Richards was found, except two one-dollar bills not accounted for. Appellant denied that he got any money off of Richards on the night before, except the 55 cents, and claimed the money found on his person as his own property, which he had borrowed on the day before from one Carver. Finley also denied that they had taken any money from Richards, except the 55 cents, and accounted for and claimed the money on his person as his own. It was also shown on the part of appellant that when they arrested prosecutor he claimed to have been robbed of his watch and some money in a house of prostitution in Denison. This is a sufficient statement of the case to discuss the legal questions presented.

We understand appellant's defense to embrace two propositions: First, that prosecutor was willing to be robbed, prepared himself for that purpose, made no resistance; and, conceding that the money was taken from him under the circumstances by the officers, that it was with his consent, and so there could be no robbery. Second, that appellant and his companion, Finley, were police officers of the town of Denison; that they were authorized by ordinance to arrest persons found drunk in any public place in said city; that appellant was found in such condition by them, and they took him into custody and carried him to jail; that they had a right to search him; that they used no violence in said search; and that in the absence of any violence used in procuring the money, conceding that they did procure it, this would not constitute robbery. Furthermore, if it be admitted that sufficient violence was shown in taking the money, still no intent was shown to appropriate it, and, if subsequently they formed the intent and did appropriate said money, it would not constitute robbery.

On the first proposition, appellant has cited a number of authorities, from which he deduces a principle of law as follows: Where money is placed upon a person with the purpose of being taken from him, in order to detect a criminal, the owner of the money and the person from whom the money is taken consenting thereto, robbery is not committed. The authorities cited in support of this proposition are Speiden v. State, 3 Tex. App. 162, 30 Am. Rep. 126; Connor v. People, 18 Colo. 373, 33 Pac. 159, 25 L. R. A. 341, 36 Am. St. Rep. 295; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360; MaGee v. State (Tex. Cr. App.) 66 S. W. 564; notes to Allen v. State, 91 Am. Dec. 477; note to State v. Hull (Or.) 54 Pac. 159, 72 Am. St. Rep. 705. Of course, if it be conceded that the evidence shows that the prosecutor was consenting to the robbery, then the application of the authorities cited may be granted. However, we gather from the authorities cited by appellant, and others, that as to the offense of burglary, larceny, robbery, and other crimes of like character, if the owner of the burglarized premises or property invites a crime or induces parties to commit an offense in order that they might be apprehended, he cannot afterwards be heard to say that he did not consent to what was done. It was so held in Allen's Case. The principle is further extended by some of the cases that where the owner of the premises sought to be burglarized authorizes his servant to act with the accused, and under the owner's direction unlocked the door of the premises said to be burglarized, and entered the premises with the accused, this was held not to be burglary, because of his consent. In Speiden's Case, which was the alleged burglary of a bank in Dallas, it appears that the owners set on foot the design to have the bank burglarized, and had detectives go in with the burglars. In that case it was held there was consent. But we do not believe it is held by any well-considered authority that where a person has learned of plans to burglarize his premises, and does not at all enter into the designs of the burglar, but does not try to prevent the burglary, on the contrary, lays plans to entrap the burglar, and does apprehend him in the act, there is no consent to the burglary, and the burglar is amendable to punishment. Robinson v. State, 34 Tex. Cr. R. 71, 29 S. W. 40, 53 Am. St. Rep. 701; Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364; State v. Sneff, 22 Neb. 481, 35 N. W. 219. And we understand the same principle is announced in Alexander v. State, 12 Tex. 540; Pigg v. State, 43 Tex. 108; Johnson v. State, 3 Tex. App. 590; Bishop, Cr. Law, vol. 1, § 262. In Alexander's Case, Judge Wheeler cites with approval the principle laid down in 3 Chitty's Cr. Law, p. 952, as follows: "If the owner, in order to detect a number of men in the act of stealing, directs a servant to appear and to encourage the design, and leads them on until the offense is completed, so long as he did not induce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed." In Russell on Crimes, vol. 2, p. 113, citing 1 Foster, p. 129, he refers to a case very much in point, and illustrative of the principle of law here involved. We quote as follows: "One Norden, having been informed that one of the early stage coaches had been frequently robbed near the town by a single highwayman, resolved to use his endeavors to apprehend the robber. For this purpose he put a little money and a pistol into his pocket, and attended the coach in a post chaise, until the highwayman came up to the company in the coach, and to him and to them presented a weapon, demanding their money. Norden gave him the little money he had about him, and then jumped out of the chaise with a pistol in his hand, and, with the assistance of some others, took the highwayman. This was holden to be a robbery of Norden." It occurs to us that the facts of this case come within the principle of the above case. Here there was no agreement between prosecutor Richards and appellant that he would submit to a robbery, as was the case in Rex v. McDaniel, 1 Foster's Rep. 121, 128. Nor was there any invitation on his part, much less was there any device to lead appellant to the commission of the offense. While he anticipated, like Norden, that he might be robbed, he made no agreement with the robbers in that regard. Apprehending that he might be robbed, he had a perfect right to prepare himself beforehand, in order that he might detect the persons guilty of the robbery, and this we understand to be all that he did. Under the authorities, this is not consent to the robbery in such measure as to absolve appellant from...