Appellants made no motion in the lower court to quash the indictment on any ground, and they made no motion in arrest of judgment because of any claimed defect in the indictment; but they now claim that as the indictment charged robbery by assault and by the use of a firearm in one count it is, therefore, duplicitous and fatally defective, and that this court should pass upon its validity. *Page 208
The statute prescribing the offense of robbery is as follows: "If any person by assault or violence or by putting in fear of life or bodily injury shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years."
In addition to the necessary allegations in an indictment, unnecessary to recite, this indictment alleged that on or about February 21, 1917, in El Paso County, Texas, Walter A. Racobs, Palmer Jones and J.H. Lay "did then and there unlawfully, and wilfully make an assault upon the person of C. Stull, and then and there by said assault and by violence to the said C. Stull and by putting the said C. Stull in fear of life and bodily injury, and then and there by using and exhibiting a firearm, towit: a pistol, did then and there fraudulently take from the person and possession and without the consent and against the will of the said C. Stull thirty dollars in money, current money of the United States of America, of the value of $30, the said property then and there being the corporeal personal property of the said C. Stull, with the fraudulent intent then and there of them, the said Walter A. Racobs, Palmer Jones and J.H. Lay, to deprive said C. Stull of the value of the same and to appropriate the same to the use and benefit of them, the said Walter A. Racobs, Palmer Jones and J.H. Lay."
This indictment is in the form laid down by Judge White in section 1465 of his Ann. P.C.; and is also in accordance with Mr. Branch's form in section 2380 of his Ann P.C.
Mr. Branch, in his 2 Ann. P.C., section 2382, correctly lays down the law as follows: "An indictment for robbery is not bad for duplicity because in the same count with the allegations of ordinary robbery it is alleged that a firearm was used in the commission of the offense. The use of a firearm or of a deadly weapon is but a circumstance of aggravation, and must be alleged in order to authorize the infliction of the more severe penalty. Robbery by firearms is not a separate offense, but the use or exhibition of a firearm or deadly weapon in the commission of robbery, when alleged and proven, authorizes the infliction of a more severe penalty than when an ordinary robbery is alleged. Beaumont v. State, 1 Texas Crim. App., 533; Green v. State, 147 S.W. Rep., 593, 66 Tex.Crim. Rep. (overruling Murdock v. State, 52 Tex.Crim. Rep., 106 S.W. Rep., 374); Robinson v. State, 149 S.W. Rep., 186, 67 Tex.Crim. Rep.; Bell v. State, 177 S.W. Rep., 966, 77 Tex.Crim. Rep.." See also Collins v. State, 77 Tex.Crim. Rep..
Each of these authorities cited by Mr. Branch are exactly in point and correctly held that the indictment herein was valid and that appellants' objections thereto are not good.
In the Green case, supra, this court held: "In our opinion, robbery *Page 209 under this statute may be committed in either one, or any two or three, or all four of the following ways: First, `by assault'; second, `by violence'; third, `by putting in fear of life'; fourth, `by putting in fear of bodily injury.' If the offense is committed in either or all of these ways, and not by the use or exhibition of a firearm or other deadly weapon, the penalty is confinement in the penitentiary for life, or any term not less than five years; but, under whichever or all of these ways the offense is committed, if committed `when a firearm or other deadly weapon is used or exhibited,' and the pleader so alleges, and proves, the punishment is by death or by confinement in the penitentiary for any term not less than five years. In charging robbery it is absolutely essential that some one or the other or all of the manners in which it may be committed, that is, by assault or by violence, or by putting in fear of life or by putting in fear of bodily injury, shall be alleged, and if it is sought to inflict the greater penalty for the offense, then, in addition to the above necessary allegations in the indictment, the pleader must further allege that, whichever way, or all the ways above charged have been used, the fact that `a firearm or other deadly weapon was used or exhibited in the commission of the offense.'
"An indictment merely alleging that robbery had been committed by the use or exhibition of a firearm or other deadly weapon, without also alleging that it was committed in one or the other or all of the ways of `by assault, or violence, or by putting in fear of life or bodily injury,' would charge no offense at all."
Appellants also contend that this court erred in striking out their bills of exceptions and not considering them, claiming that they used due diligence to procure and file them in time and that their failure to do so was because of no fault of theirs. We have carefully read their affidavits and that of their attorney undertaking to excuse themselves for not filing the bills in time. They do not by any means show a sufficient excuse for not filing the bills in time, as has many times and uniformly been held by this court. Turner v. State, 22 Texas Crim. App., 42, 2 S.W. Rep., 619; Henderson v. State, 20 Texas Crim. App., 304; Bryant v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 978, 36 S.W. Rep., 79; Bell v. State, 31 Tex.Crim. Rep., 21 S.W. Rep., 259; Riojas v. State, 36 Tex.Crim. Rep., 36 S.W. Rep., 268; George v. State, 25 Texas Crim. App., 229, 8 S.W. Rep., 25; Monk v. State, 38 Tex.Crim. Rep., 44 S.W. Rep., 158; Dennis v. State, 41 Tex.Crim. Rep., 53 S.W. Rep., 111; Adams v. State, 60 S.W. Rep., 255; Shaffer v. State, 65 S.W. Rep., 1072; Ashman v. State, 74 S.W. Rep., 317; Murphy v. State, 45 S.W. Rep., 719; Bracy v. State, 49 S.W. Rep., 598; Farris v. State, 26 Texas Crim. App., 105, 9 S.W. Rep., 487; Aistrop v. State, 31 Tex.Crim. Rep., 20 S.W. Rep., 989; Jones v. State, 74 Tex.Crim. Rep., 163 S.W. Rep., 75; Gowan v. State, 73 Tex.Crim. Rep., 164 S.W. Rep., 6; Laws v. State, 73 Tex.Crim. Rep., 164 S.W. *Page 210 Rep., 1015. But even if the bills could be considered they would present no reversible error.
In their motion appellants do not now contend that the evidence was insufficient to sustain their conviction. It is substantially recited in the original opinion.
The motion is overruled.
Overruled.