The offense is robbery; penalty assessed at confinement in the penitentiary for twenty-five years.
Wesley Sallis was in charge of a filling station belonging to an oil company of which Russell Anderson was also an employee. According to Anderson, the following took place: Two men riding in an automobile, which Anderson described, drove into the filling station and asked for water and air. While Anderson was preparing to comply with their request, Mimms (who was one of the men in the automobile), said: "We don't want air. Go to the cash register and open it up." Mimms at the time had a pistol which he pointed at Anderson, who went to the cash register and opened it. Mimms took from it $63.44, while Anderson, in obedience to Mimms' order, was standing in a corner. Sallis took no note of the men as they drove into the station, but, upon hearing the command given by the appellant to Anderson to open the cash register, started to turn around, when he was ordered to remain seated and refrain from moving or turning his head. Believing that he would be killed if he disobeyed, Sallis remained seated without turning his head. The robbers got into their automobile and drove away. Sallis was manager of *Page 556 the filling station, and the money taken was under his care and in his charge. He testified that he submitted to the taking of the money because he feared he would be killed by the men who committed the robbery.
Appellant claims that the evidence does not support the verdict, and complains of the refusal of the court to give an instruction to the jury to bring in a verdict of acquittal. As understood, the basis of the appellant's complaint is that there is a variance between the proof and the averment charging the assault upon Sallis. Appellant cites Powell v. State,60 Tex. Crim. 201, 131 S.W. 590; Abernathy v. State,55 Tex. Crim. 77, 114 S.W. 1178; Hunt v. State (Texas App.), 13 S.W. 858.
The cases to which the appellant refers are not regarded as at all in point on his proposition that the evidence is insufficient. Hunt's case, was one of assault with intent to murder. It was reversed because of an erroneous definition of the term "assault." In Abernathy's case the accused was convicted of swindling. It was reversed upon the ground that of some of the alleged false representations submitted to the jury there was no evidence. In the Powell case the accused was convicted of robbery, and the case was reversed because the averment in the indictmnt that the person injured was put in fear of his life and bodily injury was not supported by any testimony.
In the charge of the court, an approved definition of assault was given as follows: "The use of any unlawful violence upon the person of another with intent to injure such person, whatever be the means or degree of violence used, is an assault and battery. Any attempt to commit a battery, or any threatening gesture, showing in itself or by words accompanying it an immediate intention, coupled with an ability to commit a battery, is an assault."
Appellant's exception to the charge is in the following language: "He objects and excepts to said charge in submitting to the jury the issue of a robbery by assault or violence for the reason that the evidence is not sufficient to authorize such submission."
The following cases are deemed pertinent to support the ruling of the court in the present instance: Montgomery v. State, 101 Tex.Crim. Rep., 276 S.W. 250; Coulson v. State, 102 Tex.Crim. Rep., 277 S.W. 135; Knight v. State, 102 Tex.Crim. Rep., 277 S.W. 138.
We have been referred to no precedent which would support the conclusion that the evidence developed upon the present trial would not justify the court in submitting and the jury in deciding that the evidence showed an assault upon Sallis.
The identity of the appellant was vouched for by the testimony of Anderson. The appellant, by his testimony and by that of others, presented *Page 557 the theory of alibi. The controverted question was submitted to the jury in a proper charge acceptable to the accused.
The first count of the indictment charged robbery by assault and by the exhibition of a pistol; the second count omitted any reference to the use of firearms, pistol, or deadly weapon of any kind. In the charge of the court the first count of the indictment was withdrawn, and the elements of the second count alone were before the jury for consideration, and formed the basis of the verdict.
The conduct of the court in declining to order a special venire, we understand, is supported by the following cases: Crouch v. State, 87 Tex.Crim. Rep., 219 S.W. 1099; Gonzales v. State, 88 Tex.Crim. Rep., 226 S.W. 405; Sweeney v. State, 103 Tex.Crim. Rep., 281 S.W. 571; Viley v. State, 92 Tex.Crim. Rep., 244 S.W. 538; Kerley v. State, 89 Tex.Crim. Rep., 230 S.W. 163.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.