Robbery by assault is the offense; the punishment, ten years' confinement in the State penitentiary.
According to the testimony of the injured party, the appellant was one of two persons who robbed him of the sum of thirteen dollars. The robbery was effected by putting the injured party in fear of life by exhibiting a pistol, or what appeared to him to be a pistol.
Appellant, testifying as a witness in his own behalf, denied that there was a robbery, that a pistol was exhibited, or that *Page 208 violence of any character was used. The effect of his testimony was that the injured party lost his money as a result of a confidence game sometimes referred to as "pigeon dropping," engaged in by appellant and two other parties.
It was within the province of the jury to determine the disputed issues of fact. The evidence is sufficient to sustain the jury's finding.
Appellant complains because the trial court did not charge on the issue of simple assault. The facts did not raise such an issue. If any assault was committed, it was in connection with, and was a part of, the robbery. The jury was instructed to acquit appellant if it entertained a reasonable doubt as to whether the robbery was effected.
Complaint is made of the trial court's refusal to submit the case to the jury on the law of circumstantial evidence. The testimony of the injured party was both direct and positive that appellant was present at, and aided and assisted in, the commission of the robbery. A charge on circumstantial evidence was, therefore, neither required nor called for.
The count in the indictment upon which the conviction was predicated charged that the robbery was effected: by assault and violence and by putting the injured party in fear of life and bodily injury; and by exhibiting a pistol. By motion to quash, the appellant attacked the sufficiency of the indictment on the ground that it was duplicitous in that it charged both an ordinary felony and a capital felony in the same count. In his brief, appellant cites Murdock v. State, 106 S.W. 374,52 Tex. Crim. 262, as sustaining his position. The Murdock case has long since been overruled and was never followed by this court. Green v. State, 147 S.W. 593, 66 Tex.Crim. R.; Crouch v. State, 219 S.W. 1099, 87 Tex.Crim. R.; Guyon v. State,230 S.W. 408, 89 Tex.Crim. R.; and Langrum v. State, 79 S.W.2d 850, 128 Tex.Crim. R..
The judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 209
ON MOTION FOR REHEARING.