Yeagin v. State
| Decision Date | 23 February 1966 |
| Docket Number | No. 39282,39282 |
| Citation | 400 S.W.2d 914 |
| Parties | Bobby Joe YEAGIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Fred A. Carver, Joe B. Goodwin (on appeal only), Beaumont, for appellant.
W. C. Lindsay, Dist. Atty., John R. DeWitt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is robbery; the punishment, 10 years.
The indictment alleged that appellant and two others 'did unlawfully make an assault in and upon the person of Doris Grisham, and then and there by said assault and by violence to the said Doris Grisham, and by putting the said Doris Grisham in fear of life and bodily injury and then and there by using and exhibiting a firearm, to-wit, a pistol,' did take from her person and possession without her consent Forty-Six Dollars current money of the United States with intent to deprive her of said property and to appropriate the same to their use and benefit.
After the jury had been selected and sworn to try the case, and after a portion of the indictment, including the firearms allegation, had been read to the jury, the assistant district attorney made an oral motion to dismiss the portion of the indictment that alleged firearms and elected to proceed to trial on the remaining portion.
The trial judge granted the state's motion to dismiss 'that portion of the indictment alleging robbery by firearms,' and 'granted the election of the state to proceed to trial on the portion of the indictment that alleged simple robbery by assault and robbery by violence and robbery by putting in fear.'
The trial court then instructed the jury to disregard the reading of the indictment which had theretofore taken place and directed the state to re-read the indictment omitting therefrom the words 'and then and there by using and exhibiting a firearm, to-wit, a pistol.'
The indictment, omitting the allegation as to firearms, being read to the jury, appellant chose not to enter a plea and the court entered a plea of not guilty for him.
The evidence offered by the state was to the effect that at about 10 P.M. appellant and his co-indictee, Charles Kervin Lowe, entered a drive-in grocery in Houston of which Doris Grisham was in sole charge. Lowe had a scarf over his face and a shotgun in his hand. Appellant had a white stocking over his face with eye holes cut out and had a knife. The two men ordered Doris Grisham into the storeroom and appellant took $46.00 in money out of the cash register.
Appellant's confession was found by the trial judge to have been voluntarily made and was admitted in evidence.
At the conclusion of the evidence, the trial judge submitted the case to the jury as a robbery by assault case, with no reference to firearms. The jury found appellant guilty as charged in the indictment and assessed his punishment at 10 years confinement in the penitentiary.
Appellant's first and most serious ground for reversal relates to the oral granting of the state's oral motion to dismiss the portion of the indictment alleging the 'using and exhibiting of firearms, to-wit a pistol.'
The formal bill of exception as qualified, in addition to the facts stated, reflects that the assistant district attorney in his voir dire examination of the jury panel stated that this was to be a trial of the defendant on a charge of robbery by firearms, to-wit, a shotgun and by the use of a knife; that the attorney for the state at no point...
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Burrell v. State
...indictment alleging the use or exhibition of a firearm. See, e.g., Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Yeagin v. State, 400 S.W.2d 914 (Tex.Cr.App.1966); 5 Branch's Ann.P.C., 2d ed., Sec. 2570, p. 16. Arguing by analogy, the State contends this rule should control the instan......
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Aaron v. State, 51044
...for 'unlawfully transporting of intoxicating liquor' was reformed to 'unlawful possession of intoxicating liquor.' In Yeagin v. State, 400 S.W.2d 914 (Tex.Cr.App.1966), 'robbery by firearms' was reformed to 'robbery', and in Rainey v. State, 401 S.W.2d 606 (Tex.Cr.App.1966), the judgment re......
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Thomas v. State, 41962
... ... See Yeagin v. State, Tex.Cr.App., 400 S.W.2d 914. No error is shown. The third ground of error is overruled ... In the fourth ground of error, appellant contends that the indictment does not allege by what means or method an assault was made upon Thomas E. Johnson, or what means was used to ... ...
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Brown v. State
...While the law is clear that the State may orally waive, abandon or dismiss a charge or portion of the indictment, Yeagin v. State, 400 S.W.2d 914 (Tex.Crim.App.1966), such waiver is only effective to preserve the count for further prosecution if the State obtains the trial judge's permissio......