Appellant was convicted in the District Court of Bell County of robbery, and his punishment fixed at five years in the penitentiary.
We have looked over all the errors raised in the transcript on behalf of appellant but consider worthy of discussion only the two that are briefed by his attorneys. *Page 249
Appellant was indicted for robbery, it being charged that he took by force from prosecuting witness Roddy a diamond stud. In Roddy's testimony he spoke of the stolen property as a diamond pin in some places, and also spoke of it as a diamond stud. Asked specifically on cross-examination he said: "It was not a stud that screwed into the tie but it was on a pin and was a diamond stick pin." Other witnesses spoke of it as a stud. The court below instructed the jury that unless they believed from the evidence beyond a reasonable doubt that the defendant took from Roddy the diamond stud as charged in the indictment they should acquit him.
Motion for an instructed verdict because the proof of the identification of the property varied from the allegation, was denied, and this is here presented vigorously as cause for reversal. Many authorities are cited in support of the proposition that descriptives in the State's pleadings must be met by exact proof or the conviction will not stand. Substantial correspondence is all that is necessary unless the alleged variance be calculated to so mislead the accused as that he could not reasonably know from the pleading of the State what he would be called on to meet. If there be any difference between a stud and a pin, it is not made to appear from testimony of dealers or experts or those who might be in position to know. Whether a pin is a stud or vice versa does not seem to have called for any expression at the hands of the makers of dictionaries or law text writers. In Webster's International Dictionary, under the word "stud," we find the following among other definitions: "(3) A kind of nail with a large head, used chiefly for ornament; an ornamental knob; a boss. (4) An ornamental button of various forms, worn in a shirt front, collar, wristband, or the like, not sewed in place, but inserted through a buttonhole or eyelet, and transferable. (5) A short rod or pin, fixed in and projecting from something, and sometimes forming a journal." Whether the property taken was a pin or a stud, even if there be any difference between the two, was a question of fact for the jury, and the testimony concerning same making it appear that the article was called by the witnesses both a stud and a pin, we would uphold the refusal of the trial court for an instructed verdict based on the variance. However we seriously doubt there being support of any claim of variance. In People v. Nolan,95 N.E. 140, the Supreme Court of Illinois said that the description of the property as a pin was no variance from proof that it was a diamond stud, — a stud solitaire with a screw or spiral. In Mathason v. State, 89 Tex.Crim. Rep., we held proof of theft of diamond rings, not a variance from an allegation of theft of diamonds. As far as our information goes a pin and a stud each seem an ornament attached to clothing, and whether the attachment be a spiral wire, a curved wire or a straight wire would seem to constitute very little difference. The *Page 250 case at bar differs from the case of State v. Plant, 209 Mo., 307, cited by appellant, wherein the court held that an allegation of theft of a diamond ring was not met by proof of the taking of a diamond stud. When three witnesses in this record speak of the article as a stud and only one calls it a pin, this court could not safely hold this sufficient support of a motion for an instructed verdict on the ground of variance.
The State's theory in this case was that one J.H. Estes and appellant acted together in robbing Roddy. Estes turned State's evidence and testified that pursuant to an agreement and conspiracy between himself and appellant, the assault and robbery took place. He further said that appellant was to take charge of any booty obtained and afterwards divide with him.
By a bill of exceptions appellant complains of the admission of testimony from one Burns to the effect that on the morning after the alleged robbery he saw Estes at the Y.M.C.A. in Temple, Texas. That having seen in the papers that Roddy had been robbed, he made a remark to Estes in effect: "What in the hell did you want to high-jack Roddy last night for?" and that Estes turned with a pale complexion and said to witness: "Have you seen the call boy?" to which witness replied, "No, I am looking for him myself," and that Estes then said: "Do you know where Bill Henderson went? Do you know whether Bill Henderson went out on the South local this morning?" and that he then asked Estes what he was doing laying off or taking a vacation for Christmas, and that Estes turned and walked out. This appellant objected to as being acts and declarations of Estes after the consummation of the conspiracy and out of the presence and hearing of appellant. We do not agree to the proposition that the conspiracy had been consummated. Its object and purpose evidently was to secure ownership and possession of the diamond belonging to Mr. Roddy, and Estes did not then know, according to his testimony, whether appellant had secured any diamond by the assault on Roddy or not. Sapp v. State, 87 Tex.Crim. Rep.. The acting together of Estes and of Appellant being a pertinent fact for the State to prove, it was not bound in its proof by Estes' testimony to the effect that he and appellant were acting together. The State might go outside of and beyond the testimony of Estes and show in any other legitimate way that it could, the acting together of said parties. If the State was relying upon circumstances to show that Estes and appellant were acting together, it could hardly be called in question that it might prove prior to the consummation of the conspiracy, that Estes was searching for appellant or that Estes turned pale when charged with having been a party to the robbery. Whatever circumstances would be admissible as a part of the State's legitimate proof of an acting together between Estes and appellant *Page 251 in any case, would still be admissible even though Estes had turned State's evidence and admitted his participation in the affair.
Deeming appellant's contentions without merit, the judgment will be affirmed.
Affirmed.
ON REHEARING. April 9, 1924.