Wilson v. State

• Decision Date: 12 December 1928
• Docket Number: (No. 11715.)
• Citation: 11 S.W.2d 803
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 803

11 S.W.2d 803

WILSON v.STATE.

(No. 11715.)

Court of Criminal Appeals of Texas.

December 12, 1928.

Commissioners' Decision.

Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.

Victor Wilson, alias James H. Parker, was convicted of robbery with firearms, and he appeals.Reversed and remanded.

Dayton Moses, of Fort Worth, Dave Watson, of San Antonio, and Shelton & Shelton, of Austin, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, robbery with firearms; penalty, five years in the penitentiary.

The evidence shows that on or about the 22d day of August, 1927, the University Bank in the town of Austin was robbed, and property consisting of currency, United States bonds, travelers' checks, and street improvement warrants were taken.The indictment alleges that appellant made an assault upon Bruce O'Keefe, Clyde Parrish, and J. D. Copeland, Jr., and that the said property was taken "from the possession and person of the said Bruce O'Keefe, Clyde Parrish and J. D. Copeland, Jr."

The appellant presents the point that the court erred in overruling his motion to put J. D. Copeland, Jr., on the witness stand, especially to prove his want of consent to the taking.Want of consent is not one of the elements of the offense defined by article 1408, P. C., for a violation of which appellant was prosecuted and convicted.It was neither necessary to allege nor prove a want of consent.It has been specifically held that the inclusion of the words "without the consent and against the will" of the person robbed does not vitiate the indictment, since the statute does not include such words in the definition of the offense, and may be for that reason rejected as surplusage.Flannagan v. State, 55 Tex. Cr. R. 162, 116 S. W. 54;Clark v. State, 28 Tex. App. 189, 12 S. W. 729, 19 Am. St. Rep. 817;Chancey v. State, 58 Tex. Cr. R. 54, 124 S. W. 426.

Nor is there any merit in appellant's claim that the proof fails to sustain a joint assault upon the three persons named as alleged in the indictment.It shows, in substance, that a pistol was waved and exhibited in the presence of all three, and that all three were compelled to lay down while the money was taken.

The claim is further made that the proof shows possession and special ownership of the property taken in O'Keefe and Parrish only, while the indictment alleges such possession and ownership in three, viz.O'Keefe, Parrish, and Copeland, which constituted a fatal variance, and demanded a peremptory charge to acquit.The allegation of possession and ownership was a material one, and proof was necessary to sustain it as laid.Hasley v. State, 87 Tex. Cr. R. 447222 S. W. 579;Guyon v. State, 89 Tex. Cr. R. 292, 230 S. W. 408;Owens v. State, 28 Tex. App. 123, 12 S. W. 506;Pate v. State, 91 Tex. Cr. R. 474, 239 S. W. 967.

BillNo. 4, presenting this matter, is qualified to show that at least an issue was present regarding this, and the court recognized such in his main charge.In view of the disposition we make of this case, we desire to say that we think the special charge asked by appellant, in substance, to the effect that, if possession and ownership were believed by the jury to be in O'Keefe and Parrish only, to acquit, should have been given, in lieu of the negative presentation of this matter as contained in the court's charge.

The claim is made by appellant that the only positive evidence of identification of appellant was given by one Miss Potts, who was in the bank at the time of the robbery.On redirect examination she was permitted to testify over objection that she had looked through and examined some 200 or more pictures which were shown to her by officers, and that, in addition thereto, she examined two pictures of appellant exhibited by said officers, and identified appellant's picture as being one of the men who robbed the bank and whom she saw leaving the bank and entering an automobile.This seems to have...