The indictment charged robbery in nine counts. The first count charged an assault against nine individuals. The other counts related to the same transaction but was based upon the assault upon separate individuals. The conviction was upon the fifth count, which charged on assault upon Orval Canady and taking from him thirty dollars.
All of the parties named in the indictment, including Ollie Cole and John Pearson, were engaged in a gambling game with dice. Cole and Pearson each suffered some losses. They left and returned within a short time. Upon their return, appellant presented a pistol and commanded that the parties throw up their hands while Pearson caused them to place their money, or a part of it, on the ground where the game was in progress. Pearson took possession of a part of the money and afterwards delivered to the appellant the amount of his loss, namely, twenty-seven dollars.
It was the theory of the appellant and Pearson, both of whom testified, that they had lost their money by means of false pretext, *Page 540 namely, the use of fraudulent dice in the game and that their object in making the assault was the recovery of their money and without any intent to wrongfully deprive any of the persons named in the indictment of money which was in their possession and which had not been taken by the means stated from the appellants.
It was the state's theory that the matter of fraudulent dice was false and that the defensive theory was fabricated; that it was the intent of the appellants to commit the offense of robbery by fraudulently depriving the persons named of their money.
In making the assault, the appellant and Pearson were not disguised. They were tried together under a joint indictment. Pearson was acquitted and the appellant was convicted by the same verdict. If their money was taken from them by means of fraudulent dice, as contended by the appellants, the persons so taking it would be guilty of theft by false pretext and the title to the money thus acquired would not pass. Gibson v. State, 85 Tex.Crim. Rep.; Gordon v. State, 85 Tex. Crim. 641. Under such circumstances, in endeavoring to repossess themselves of money stolen from them, they would not be guilty of robbery though they might be guilty of an unlawful assault. See Barton v. State, 227 S.W. 317; Fisher v. State,277 S.W. 386. These legal principles were in a general way recognized in the trial of the case by the learned judge who presided. It seems to have been the theory to some extent of both the prosecution and the defense that in robbery the return of the property before the beginning of the prosecution would have the same effect as in theft, namely, to reduce the grade of the offense to a misdemeanor. This is the statutory rule applicable to theft, but in the absence of a statute it is believed that it would not be applicable to robbery. See Art. 1343, Vernon's Tex.Crim. Stat., Vol. 1.
Testimony touching the efforts or desire to return the property in the present case bears upon a different subject, namely, that of intent. It was the theory of the appellant and his companion, as above stated, that they had no intent to take any money save their own; that by mistake they took an amount exceeding their joint losses. Upon this subject the testimony of both the appellant and Pearson was to the effect that after leaving the scene of the robbery and upon discovering that they had money in excess of the losses sustained by them, they immediately determined and took steps to return the excess. To effect that end, appellant retained his own money amounting to twenty-seven *Page 541 dollars, including a ten-dollar gold piece which he had worn as a watch charm and which he had lost in the game, according to his testimony, by the fraudulent means stated. He relied upon Pearson to make the distribution of the excess. It was their agreement to return the money to those who were innocent of the use of fraudulent dice. Part of the money was returned and some of the parties, upon inquiry by Pearson, disclaimed any losses or that they had been deprived of any money. Pearson claimed that he failed to get in touch with some of the parties until after the prosecution had begun. Upon the beginning of the prosecution, there was some conflict of evidence, some of the testimony indicating that it began on the afternoon of the day upon which the alleged offense was committed and some indicating that it began on the following morning. The assault was made in the day time. The assailants were unmasked and known to the parties who were assaulted.
Both appellant and Pearson testified that in their efforts to ascertain the owners of the money which did not belong to the appellants, they invoked the aid of a witness by the name of Bill Comeskey. It was expected to be shown that after talking with Pearson and the appellant, the witness went to Davis, one of the alleged injured parties named in the indictment and a material witness for the state, and had a conversation with him. An offer was made to prove by Comeskey that he had gone to Davis at the request of the appellant in order to return to Davis any money of which he might have been deprived. An offer was also made to prove by Comesky that on the same day that the offense was alleged to have taken place, he was requested by Pearson to see Davis and learn if he had used fraudulent dice and to ascertain from him whether more money had been taken from him than he had been given by the appellants; that the witness went to Davis for the purpose mentioned and talked to him. It also appeared that Pearson requested Comeskey to see Davis, who was in the game, and tell that if any money had been taken from him which he felt that Pearson and Cole were not entitled to, that Pearson would return it; that Cole had obtained only the amount of his loss and that the excess was in possession of Pearson; and that Pearson and Cole wanted only the money out of which they had been cheated.
Objection was also sustained to the proffered testimony of Pearson to the effect that he requested Comeskey to see the other persons from whom money had been taken with a view to restore *Page 542 the loss; that this occurred upon the day that the offense was charged to have been committed.
We are of the opinion that the testimony embraced in the bills mentioned was material upon the issue of intent. The assault in which both the appellant and Pearson participated was established beyond dispute. Whether they acted with a fraudulent intent in acquiring the money which did not belong to them or whether moved alone by the desire to recover the money which had been stolen from them was a crucial issue for the decision of the jury. The fact that the amount of money in their possession was somewhat in excess of their losses was probably made use of by the state upon the issue of intent. Their acts and declarations immediately after the discovery and their efforts to restore it are regarded as proper matters of evidence; and in rejecting the testimony the learned trial judge was in error.
The State's Attorney made arguments which are made the subject of complaint. In one of these he said:
"Look in his face, gentlemen of the jury, and if you do not find in there the kind of man he is I lost my guess; if you do not see in his face that he is the kind of man that would do a thing of this sort. I think he ought to be sent to the penitentiary in this case. I judge Ollie Cole led John Pearson into this trouble."
It appears that an exception was reserved to this argument and to the failure of the court to tell the jury to disregard it. An expression of opinion of guilt, while improper, is not generally regarded as a proper basis for reversal. In the present case, however, the argument goes further than to express an opinion of the guilt of Cole but is accompanied by an opinion comparing Cole with Pearson.
In another bill of exceptions complaint is made of the following argument of the State's Attorney:
"As for Ollie Cole, I have no sympathy. He has not a good face. God Almighty has stamped in his face what he is; time, and what he has been in this life, are written there in lines that will never be erased."
It appears that an exception was also reserved to this argument and to the failure of the court to instruct the jury to disregard it.
So far as shown by the record, the acts of Pearson and the appellant were identical, and in the explanation of conduct the same testimony was adduced. Something impressed the jury so that upon the facts which resulted in the appellant's conviction, Pearson was acquitted. To what extent the argument mentioned *Page 543 contributed to the conviction of the appellant is not ascertainable. The impropriety of the argument, however, is not debatable under the authorities. See Pierson v. State, 18 Tex.Crim. App. 563, and cases collated by Mr. Branch in his Ann. Tex. P. C., Sec. 365.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment is reversed and the cause is remanded.
Reversed and remanded.