Article 1327, Vernon's Penal Code reads 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."
Since the Article was amended by adding the last clause which enhances the punishment where a firearm or other deadly weapon is used our decisions have not been harmonious relative to indictments charging the offense of robbery. (See Murdock v. State, 52 Tex.Crim. Rep., 106 S.W. Rep., 374; Green v. State, 66 Tex.Crim. Rep., 147 S.W. Rep., 593; Bell v. State, 77 Tex.Crim. Rep., 177 S.W. Rep., 966; Robinson v. State, 67 Tex.Crim. Rep.; 149 S.W. Rep., 186; Lay v. State, 82 Tex.Crim. Rep., 198 S.W. Rep., 291). However, we regard the controversy as settled by the opinion in Crouch v. State,87 Tex. Crim. 115, 219 S.W. Rep., 1099. Judge Davidson, who wrote the opinion in Murdock's case and dissented in Green's and Robinson's cases was a member of this court when Crouch's case was decided and agreed to the opinion without comment or dissent. We advert to the foregoing cases because some of them are referred to in appellant's brief on rehearing. In Crouch's case the indictment charged as follows:
"Charles I. Crouch in and upon W.C. Carter did make an assault and did then and there by said assault and by violence and by putting *Page 399 said W.C. Carter in fear of life and bodily injury, and by then and there using and exhibiting a firearm, to-wit: a pistol," etc.
It was urged that the indictment was duplicitous. In discussing that question this language was use.
"It is apparent from the statute that an element of robbery is an assault. To charge the offense of robbery with a deadly weapon it is obvious that an averment that in committing the robbery an assault with a deadly weapon was made would be appropriate."
Further commenting the court said in substance, that where the robbery was charged to have been committed with firearms the effect of it would be to confine the State to proof that in committing the offense firearms were used. After referring to the conflicting opinions heretofore noted the court concludes the opinion in the following language:
"We are of the opinion that the view that the reference to the firearm or deadly weapon in the statute is but a matter of aggravation, and its embodiment in the indictment with the other elements of robbery does not render the indictment duplicitous."
It is apparent from a reading of Article 1327 that the pleader may if he sees fit charge robbery in such a manner that it will be a capital case only. The indictment in the instant case, omitting formal allegations charges that:
"Henry Viley did by using and exhibiting a firearm, to-wit: a pistol, make an assault in and upon one C.J. Brownie, hereinafter called the injured party, . . . and did then and there by means aforesaid use violence to and upon the said injured party, and by the use and exhibition of said pistol as aforesaid did put the said injured party in fear of life and bodily injury," and then further alleges the fraudulent taking of the property from the said Brownie. It will be readily seen that no assault or violence is alleged except with a pistol. Appellant filed a motion asking that a special venire be drawn and summoned from which to select a jury. He also filed an application for continuance in which he says that he is charged with a capital offense, to-wit: robbery with firearms, and again requested that the cause be continued to a day certain, and that a special venire be ordered by the court. These requests were overruled. The orders of the court contain no reasons for a failure to order a special venire, and the only reasons we find are in qualifications to bills of exception to the effect that the "State abandoned the death penalty," and that the "State did not qualify jurors with reference to the death penalty." The evidence shows that the only assault made to effect the robbery was with a pistol. When the court submitted the case to the jury he did not submit the elements of robbery perpetrated in an assault with a pistol, but told the jury in substance that if appellant made an assault upon the person of C.J. Brownie and by said assault and by violence did fraudulently take property from his person, *Page 400 they should find him guilty and assess his punishment at confinement in the State penitentiary for any term of years not less than five. Appellant in a timely manner excepted to the charge of the court because the law applicable defines the punishment to be by death or for any term of years not less than five; and because the only allegation in the indictment and the evidence on the trial raised the issue of robbery committed by the use of firearms alone, rendering it a capital offense and, no other. In every way possible appellant insisted that he was entitled to have a special venire from which to select his jury. The question is: Could appellant, under the indictment as drawn, be deprived of his right to have a special venire?
In a capital case the accused is entitled to a special venire (Article 657, Vernon's C.C.P.) and assuming that he is to be tried for a capital offense, he is within his rights when he demands it. In denying appellant's request we apprehend the court below believed he was within the rule announced in Gentry v. State, 68 Tex.Crim. Rep., 152 S.W. Rep., 635; Clay v. State, 70 Tex.Crim. Rep., 157 S.W. Rep., 164, and other cases, viz: that State's counsel may dismiss the prosecution for murder and the accused be put upon trial for lesser degrees of the offense embraced in the indictment, and in such event no special venire would be necessary; and also that he was within the rule announced in Weaver v. State, 52 Tex.Crim. Rep., and Gonzales v. State, 88 Tex.Crim. Rep., 226 S.W. Rep., 405 the last two being robbery cases. There can be no question of the soundness of the rule in murder cases, because that is an offense of different degrees, and upon an indictment for murder conviction may be had for any lesser offense included in the charge. Neither is there any doubt in our minds as to the correctness of the proposition announced in the Weaver and Gonzales cases; but the form of indictment in those cases must bekept in mind.
In Miller's case, 74 Tex.Crim. Rep., 169 S.W. Rep., 1164, the indictment contained counts for robbery and theft from the person. The State dismissed as to the robbery count, and we held a special venire could not be demanded. In Walker v. State, 28 Tex.Crim. Rep., the indictment was for murder, but the State admitted the defendant was under seventeen years of age, and under Article 35 P.C., the admission took the case out of the "capital offense" class. We regard it as settled by Crouch's case, (supra) that Art. 1327 P.C. does not define two offenses but one only, and that robbery. It may be committed in various ways, namely; (a) by an assault, (b) by violence, (c) by putting in fear of life or bodily injury; and when the assault, or the violence, or the putting in fear of life or bodily injury, is accompanied or effected by the use or exhibition of a firearm or other deadly weapon that may be alleged, and then the charge becomes a capital offense. The indictment may allege the perpetration of the robbery in any one or in all of the various ways *Page 401 pointed out in the statute. In Weaver's case, Judge Davidson in the opinion uses the following language:
"The indictment charges appellant with violation of the statute denouncing the punishment for robbery, and charges practicallyevery phase of the statute, including robbery with weapons. When the case was called for trial the State abandoned and dismissed that portion of the indictment which charged robbery by the use of deadly weapons. It is contended this dismissed the entire case from the docket, and there was nothing upon which to try the case. This we do not believe to be the law. Where a statute denounces an offense and the different ways by which it might be committed, the pleader may select either or may embody in the indictment all and every means charged in the statute."
We quote from the Gonzales case, supra, as follows:
"The indictment charged robbery by assault and violence, andalso charged the use of firearms. The crime of robbery by assault is a felony, but not capital; however, when deadly weapons are used it becomes capital, Penal Code, Art. 1327. Where the indictment contains both phases of the crime, that charging the use of firearms, which merely enhances the punishment, is not essential, and it would be within the power of the State to abandon that phase and prosecute upon the other. Crouch v. State, 87 Tex.Crim. Rep.. The State, in the instant case, as we understand the record, pursued practically this course, by announcing that that part of the indictment making it a capital case would not be insisted upon. The indictment was filed during term time, and the case at the same term was tried about forty days after the indictment was presented. No request was made by either the State or the appellant for special venire. When announcement was made, the appellant advised the court that he would claim the privilege of exercising fifteen peremptory challenges. Being advised by the court he would not sanction this course, but would confine him to ten such challenges, they proceeded to select the jury, the appellant exercising eight peremptory challenges. In a capital case the accused is entitled to a special venire, and assuming that the appellant was to be tried for a capital offense, he would have been within his rights to demand a special venire at the time the case was called for trial. Farrar v. State, 44 Tex.Crim. Rep.; Burris v. State, 36 Tex.Crim. Rep.. Whether his failure to demand a special venire at that time was a waiver of that right, under the circumstances we need not decide, as in our judgment the action of the State, which was sanctioned by the trial judge, amounted to a dismissal of that part of the indictment which made the casecapital. At least it amounted to an election upon the part of the State to abandon that part of the indictment, which did not prejudice its right to proceed with the remainder, which charged a felony not requiring a special venire. Weaver v. State,52 Tex. Crim. 11." *Page 402
The indictment in the instant case does not undertake to charge every phase of the statute denouncing robbery but charges only a robbery by assault with firearms and by violence committed therewith. As we understand the record before us the State did not undertake to abandon or dismiss any part of the indictment, for, indeed it could not have done so. There was only one part and that charged a robbery by the use of firearms. If the State had dismissed this charge then it might well have been contended as was done in the Weaver case that the entire case had been dismissed, and nothing left upon which to try appellant. But in Weaver's case the State abandoned and dismissed that portion of the indictment which charged robbery by the use of deadly weapons, there still remaining the vital portions of in indictment charging robbery by assault and violence. It will be seen that in the Gonzales case the indictment charged robbery by assault and violence, and also charged the use of firearms; it was held in that case that charging the use of firearms enhanced the punishment and it would be in the power of the State to abandon that phase and prosecute upon the others, to-wit: a charge of robbery by assault and violence independent of the use of firearms; but in the instant case they could not abandon or dismiss the phase of the indictment charging the use of firearms, because no other character of robbery was charged than one committed by their use. There does not appear in the record any effort on the part of the State to dismiss or abandon any part of the indictment because under the peculiar wording thereof it was doubtless understood by counsel representing the State and the court that it would leave no offense charged against appellant. What really happened was this: when appellant demanded a special venire it was sought to deny him that right by the State announcing it would not insist upon the death penalty. The correctness of this theory is borne out by the court's qualifications to the bills of exception, to-wit: — " the State abandoned the death penalty," and "did not qualify jurors with reference to the death penalty." The State not being in a position where it could abandon or dismiss any part of the charge against appellant, then the question remains could he be deprived of a special venire (a) by the State announcing that it would not seek the death penalty; and (b) the manner in which the case was submitted to the jury?
As was said by Judge White in Kouns v. State, 3 Texas Crim. App., 13.
"The charge (of the court) must set forth the law applicable to the case (Art. 735, Vernon's C.C.P.), and the case is the offense stated in the indictment. Stanfield v. State, 43 Tex. 167. The charge and proof must conform to, and should be limited by the specific offense as set forth in the indictment, except in cases admitting of lesser degrees, where it may be necessary to present the law applicable to such degrees." *Page 403
See also McGee v. State, 5 Texas Crim. App., 492; Anderson v. State, 16 Texas Crim. App., 132; McGrew v. State, 19 Texas Crim. App., 302; Cooper v. State, 22 Texas Crim. App., 419; Miller v. State, 28 Texas Crim. App., 445, Surrell v. State, 29 Texas Crim. App., 321; Otero v. State, 30 Texas Crim. App., 450; Drechsel v. State, 35 Tex.Crim. Rep.. Reverting to Miller's case,supra, we find that Miller was charged with a burglary by means of force, threats and fraud. The evidence showed force alone. The court however in his charge authorized a conviction not only on the use of force but by threats and fraud as well. The charge was excepted to, and the judgment was reversed. In the instant case the indictment charged assault and violence committed with a pistol and in no other way. The proof sustained the allegations. Appellant believed if the lower court in his charge followed the allegations in the indictment and the proof (which he had a right to expect he would do under Art. 735 C.C.P., and the authorities cited) that he was not only being put on trial for a capital offense, but that the same should be so submitted to the jury under the proof. But the court in the charge abandoned the pistol and authorized a conviction for a robbery committed by any kind of an assault or violence. He not only did not follow the indictment and proof, but abandoned the statute as well in not giving the penalty applicable under the allegations and evidence. This the court was unauthorized to do, and in our opinion would not cure the error in declining to provide a special venire.
When appellant requested the special venire and was refused on the ground that the State had abandoned the "death penalty" he found himself much in the same position that the defendant was in Kerley v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 163. Kerley was charged with rape. He did not ask for a special venire, but did demand his right to fifteen challenges because he was charged with a capital offense. (Article 691, C.C.P.) The prosecuting attorney expressly stated there, as in the present case, that he would not insist upon the death penalty, whereupon the court restricted the defense to ten challenges. There was no effort to dismiss the charge of rape and prosecute for assault with intent to commit rape. In our opinion reversing the judgment will be found this language:
"The appellant, we think, justly insists that rape was made a capital offense by the law-making power of the State, and that its classification as such cannot be changed by any declaration that the prosecuting attorney may make."
So in the instant case the Legislature has made robbery when firearms are used in its perpetration a capital offense. The State having elected to charge in the indictment against appellant that kind of robbery and no other, the indictment under the Legislative Act classified the offense as capital. The State being in a position, by reason of the restrictive allegations, where it could not dismiss as to the *Page 404 capital offense charged could not deprive appellant of a special venire by waiving the "death penalty" any more than Kerley could have been denied his fifteen challenges by the same announcement.
Upon a more critical analysis of the form of the indictment, and more thorough examination of the authorities, we have reached the conclusion that we were in error in our holding in the original opinion, and the order of affirmance is set aside, and the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. October 18, 1922.