The appellant in this case was convicted of the offense of robbery, and sentenced to imprisonment in the penitentiary for five years, and from the judgment and sentence of the lower court he prosecutes this appeal.
The indictment in this case contains four counts. The defendant was convicted under the third count, which is as follows: "And the grand jurors aforesaid, upon their oaths aforesaid, further present in said court, that the said P.E. Williams, on the day and year aforesaid, in the county and State aforesaid, and anterior to the presentment of this indictment, did then and there unlawfully threaten to do an illegal act injurious to the person of Henry Selz, to wit, did then and there threaten to kill the said Henry Selz, in substance, to wit: That he and W.J. Stewart wanted four hundred dollars; that the said Selz had to pay it, or that he, the said Williams, would kill him, the said Selz; that he, the said Selz, had to pay it right then and there, or give a check for it. And the said Williams did then and there, by the means of said threat, fraudulently induce the said Henry Selz to deliver to *Page 530 him, the said P.E. Williams, without the consent of the said Henry Selz, one draft or check to the tenor following 'No. 233. Cooper, Selz Co., Merchants and Public Gin, and Dealers in Bagging and Ties. Pilot Point, Texas, Oct. 27, 1894. Pay to the order of W.J. Stewart $400 00 (four hundred dollars). To Pilot Point National Bank, Pilot Point, Texas. Cooper, Selz Co.' — which said draft or check was then and there the property of the said Henry Selz, with the intent then and there to deprive the said Henry Selz of the same, and to appropriate the same to his, the said P.E. Williams', own use, against the peace and dignity of the State."
The appellant contends in this case, that if the proof shows that a robbery was committed, it was done by assault and by violence, and that there is a variance between said count and the evidence, and the defendant can not be convicted under this count of the indictment. It will be noted that this count does not charge a robbery by assault and by violence, but same is predicated on article 723 of the Criminal Code, which reads as follows: "If any person by threatening to do some illegal act, injurious to the person of another, shall fraudulently induce the person so threatened to deliver him any property, with intent to appropriate the same to his own use, he shall be punished," etc. The proof in this case, on the part of the State, shows not only the threat to do violence to the person of the prosecuting witness, Selz, but that defendant proceeded to execute said threat by assaulting said prosecutor with his gun; that is, the proof shows that the defendant did what is charged in the indictment, and more, and a conviction might have been sustained under preceding articles of the code. But it does not follow that, because he might have been so convicted, there is a variance between said count and the proof in this case, no more than would follow, if a person was indicted for an aggravated assault, and the proof should show that he had committed an assault with intent to murder, he could, under such charge of aggravated assault, be convicted of same.
The said count in the indictment charges that the check in question was the property of Henry Selz, and the defendant contends, that inasmuch as the check alleged to have been taken from the prosecutor, Selz, was signed, "Cooper, Selz Co.," same was the property of said company, and that, inasmuch as said count charges the check to be the property of Henry Selz alone, this constitutes a variance. The evidence in this case shows, that while the firm name was signed to the check, yet the prosecutor, Henry Selz, one of the members of the firm, was the party assaulted, and that he was compelled to execute the check in question, and deliver same to the defendant. The firm was not present and had nothing to do with the execution of said check, but it was executed in this way in order to enable the defendant to get the money from the bank, as the prosecutor, Selz, had no separate funds at the bank. The property in this case was taken from Henry Selz alone, and, in his settlement with the firm, said *Page 531 amount was charged to him. It was not a robbery, and taking from the firm, but from Henry Selz. So far as the robbery was concerned, the check and funds were his property, were in his possession, and he was compelled to surrender same to defendant; and, as in a theft case, said check, being in his possession, was his property. Nor was it necessary, under the circumstances of this case, to negative the consent of any of the other firm members to the taking.
The State in this case introduced what purported to be a copy of the check, the draft alleged to have been taken from the prosecutor, Selz. This was after the loss and destruction of the original check had been shown, and it was permissible for the State to use this copy, which was written upon a blank similar to the original check, in connection with parol proof, as a part of the proof of the contents of the destroyed original, and in this action of the court we see no error; and the fact that said copy had some writing across the face of same, which was not on the original instrument as set out, as explained by the witness, constituted no variance.
The appellant asked the court to charge the jury, that, in order to convict the defendant, the State, for such conviction, must rely solely upon the threat to kill, as incorporated in the indictment, and that a conviction can not be had upon any threats of any other nature or character. This charge was substantially given by the court, and it was no error to refuse the requested instructions.
It was not necessary in this indictment to allege that the check in question had any specific value. It was described as a check or draft, and was set out in the indictment according to its tenor, and it was such property as is the subject of theft or robbery. See article 732, Penal Code. The allegations in the indictment show that the defendant demanded of the prosecutor $400, or a check for same, and that the check in question was given; and there was no error in permitting the proof that the defendant cashed said check, and procured the money thereon. It was a part and parcel of the transaction, and was admissible in evidence.
There was no error in this case in permitting the State to show, that on Monday following the robbery the defendant had a pistol. The State showed originally by Henry Selz that, as a part of the transaction constituting the robbery, when the defendant came back the second time to get him to correct the draft, defendant started to carry his gun to the office, but, on request of the prosecutor, he left it at the buggy, putting his hand in his bosom, and remarking that he was fixed for him, anyhow; and after he went into the office, the prosecutor testified that he saw the handle of a pistol; that the defendant had his hand on or about it while he was signing the draft. The defendant himself took the stand, and denied that he had any pistol on the occasion, and further testified, that he had never owned or carried a pistol in the State of Texas; and, in rebuttal of this evidence by the defendant, it was competent for the State to show, that on the Monday *Page 532 following the robbery defendant was seen by the witness Boner carrying a pistol on his person.
The appellant contends in this case, that the prosecutor had previously agreed to pay Mrs. Stewart, his mother-in-law, $400, in consideration for an insult that she alleged had been offered her by said prosecutor, and that he went with Mrs. Stewart on the occasion merely for the purpose of collecting this money, which had been agreed to be paid Mrs. Stewart, and that this constituted no offense. Upon this question there were two theories presented — one by the State, and one by the defendant. The defense showed that on Saturday night, about a week before the alleged offense, at the house of the prosecutor, where Mrs. Stewart was employed, the prosecutor made indecent proposals to her, and that she then threatened to expose him, and to prosecute him before the law, and to tell his wife, and that, in consideration that she would not do so, the prosecutor had agreed to pay her $500; that within the next day or two he paid her $100 of said sum, and agreed to pay her the balance; that he did not do so; and that she got her son-in-law, and went to the gin where he was at work, for the purpose of collecting said amount. On the other hand, the State showed by testimony that the prosecutor made no indecent proposals to Mrs. Stewart, but that she accused him of same, and threatened him with exposure unless he would pay her $500; that he first offered her $50, as he did not care to have any trouble with her; and that then she agreed to take $100; and that he paid her this amount, and had made no agreement whatever with her to pay her any further sum Both of these theories were presented to the jury by the charge of the court, and the charge on behalf of the defendant was liberal, in that the instruction told the jury, if defendant believed that the prosecutor owed said money to Mrs. Stewart, and that he took that means to collect same, they would acquit him, although in fact the prosecutor had made no agreement to pay her the same. The jury, however, do not appear to have taken this view of the case, but took the view as presented by the evidence offered on the part of the State; and they were justified, in our opinion, in doing so.
There being no errors of record requiring the reversal of this case, the judgment and sentence of the lower court are affirmed.
Affirmed.
DAVIDSON, Judge, absent. *Page 533