Williams v. State

• Decision Date: 01 June 1895
• Citation: 31 S.W. 405
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W. 405

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

June 1, 1895.

Appeal from district court, Denton county; D. C. Barrett, Judge.

P. E. Williams was convicted of robbery, and appeals Affirmed.

Lobdell & Greenlee, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant in this case was convicted of the offense of robbery, and sentenced to imprisonment in the penitentiary for five years, and from the judgment and sentence of the lower court he prosecutes this appeal.

The indictment in this case contains four counts. The defendant was convicted under the third count, which is as follows: "And the grand jurors aforesaid, upon their oaths aforesaid, further present in said court that the said P. E. Williams, on the day and year aforesaid, in the county and state aforesaid, and anterior to the presentment of this indictment, did then and there unlawfully threaten to do an illegal act injurious to the person of Henry Selz, to wit, did then and there threaten to kill the said Henry Selz, in substance, to wit: That he and W. J. Stewart wanted four hundred dollars; that the said Selz had to pay it, or that he, the said Williams, would kill him, the said Selz; that he, the said Selz, had to pay it right then and there, or give a check for it. And the said Williams did then and there, by the means of said threat, fraudulently induce the said Henry Selz to deliver to him, the said P. E. Williams, without the consent of the said Henry Selz, one draft or check to the tenor following: `No. 233. Cooper, Selz & Co., Merchants and Public Gin and Dealers in Bagging and Ties. Pilot Point, Tex., Oct. 27, 1894. Pay to the order of W. J. Stewart $400.00 (four hundred dollars). To Pilot Point National Bank, Pilot Point, Texas. Cooper, Selz & Co.,' — which said draft or check was then and there the property of the said Henry Selz, with the intent then and there to deprive the said Henry Selz of the same, and to appropriate the same to his, the said P. E. Williams', own use, against the peace and dignity of the state."

The appellant contends in this case that, if the proof shows that a robbery was committed, it was done by assault and by violence, and that there is a variance between said count and the evidence, and the defendant cannot be convicted under this count of the indictment. It will be noted that this count does not charge a robbery by assault and by violence, but same is predicated on article 723 of the Criminal Code, which reads as follows: "If any person by threatening to do some illegal act, injurious to the person of another, shall fraudulently induce the person so threatened to deliver him any property, with intent to appropriate the same to his own use, he shall be punished," etc. The proof in this case, on the part of the state, shows not only the threat to do violence to the person of the prosecuting witness, Selz, but that defendant proceeded to execute said threat by assaulting said prosecutor with his gun; that is, the proof shows that the defendant did what is charged in the indictment, and more, and a conviction might have been sustained under preceding articles of the Code. But it does not follow that, because he might have been so convicted, there is a variance between said count and the proof in this case, no more than would follow, if a person was indicted for an aggravated assault, and the proof should show that he had committed an assault with intent to murder, he could, under such charge of aggravated assault, be convicted of same.

The said count in the indictment charges that the check in question was the property of Henry Selz, and the defendant contends that, inasmuch as the check alleged to have been taken from the prosecutor, Selz, was signed, "Cooper, Selz & Co.," same was the property of said company, and that, inasmuch as said count charges the check to be the property of Henry Selz alone, this constitutes a variance. The evidence in this case shows that, while the firm name was signed to the check, yet the prosecutor, Henry Selz, one of the members of the firm, was the party assaulted, and that he was compelled to execute the check in question, and deliver same to the defendant. The firm was not present, and had nothing to do with the...