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87 Tex. Crim. 107

220 S.W 100

Clark v. State

Court of Criminal Appeals of Texas

Decided March 17, 1920

Court of Criminal Appeals of Texas · decided 1920-03-17

<p>1. —Robbery—Definition of Offense—Statutes Construed.</p> <p>Where, upon trial of robbery by the use of firearms, the evidence showed that the defendant and his Companion induced the owner of the car to enter the same for a demonstration drive, saying that they wanted to purchase, a car, and after driving some five or six miles away from the owner’s automobile shop, induced him to leave the car momentarily by a trick and then assaulted him with firearms, bound and gagged him and returned to the car and appropriated the same, the same was robbery under Article 1327, Penal Code, and not theft by fraud and artifice.</p> <p>2. —Same—Other Jurisdictions—Robbery Defined.</p> <p>Many of the cases cited by appellant are decisions in states in which the statute defining robbery confines the taking to the person, but the Texas Statute supra extends to the possession as well as the person, and the alleged owner not having lost his possession by temporarily leaving the car was still in the care, control, and management of the same, and this although the defendant and his companion had been driving it under the owner’s direction. Following Odell v. State, 44 Texas Crim. Rep., 310, and other cases.</p> <p>3. —Same—Holiday—Fourth of July.</p> <p>The issuance of a copy of the sheriff’s return on the special venire on July fourth did not vitiate the return, following Macklin v. State, 53 Texas Crim. Rep.,' 200, and other cases.</p> <p>4. —Same—Special Venire.</p> <p>The failure of some of the veniremen to respond is not a ground for quashing the writ. Following Hall v. State, 28 Texas Crim. App., 146, and other cases.</p> <p>5. —Same—Photographs—Evidence.</p> <p>Upon trial of robhery there was no error to introduce photographs of the locality of the crime in evidence.</p> <p>6. —Same—Recalling Witness—Discretion of Court.</p> <p>There is no abuse of the discretion of the trial court shown in permitting the State to recall one of its witnesses. Following Moore v. State, 7 Texas Crim. App., 14 and other cases.</p> <p>7.—Same—Rehearing—Possession—Definition of Offense.</p> <p>Where, appellant contended on motion for rehearing that the owner of the automobile, having been induced by defendant by a trick to leave the automobile and go to the place where he was bound and gagged and could not see the car, that the offense if any was theft and net robbery, but the facts showed that defendant acquired possession only after he and his companion had forcibly bound and gagged the owner, the car was still in the constructive possession of the owner although he could not see it at the time, and the offense is robbery and not theft.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1920-03-17

How this case has been cited

Cited by 5 later decisions — most recently January 1975

5 state decisions

20192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 ON REHEARING.

¶2 April 14, 1920.

MORROW, Judge.

¶3 Appellant insists that Thompson having been induced by a trick to leave the automobile on the pike and go to the old out-house a hundred yards distant, from which the automobile could not be seen, the offense committed was not robbery, but theft. The fault in this view, as we endeavored to show in the original opinion, is that the appellant did not acquire the possession of the ear when Thompson left it in the road, but acquired it only after he and his companion had forcibly bound Thompson. Our statute makes one guilty of robbery who by assault or violence fraudulently takes from the person or “possession”, of another property with intent to appropriate the same to his own use. Art. 1327, Penal Code. In our judgment, Thompson was in possession of the ear while it was standing in the road, although he could not see it from where he was situated in the old house, and remained in possession of it until the appellant and his companion by force deprived him of it. The case is not one in which the appellant acquired possession, that is, control and management of the ear, by a trick. The office of the trick was to induce Thompson to go to the point where the appellant and his companion might safely assault Mm, and by violence obtain possession of the car. The authorities referred to in the original opinion are, we think, in point, and the conclusion therein reached correct.

¶4 We are therefore constrained to overrule the motion for rehearing.

¶5 Overruled.

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