The conviction is for robbery; the punishment assessed is confinement in the state penitentiary for a term of five years.
It was charged in the indictment that Berkley Barfield and Fred L. Carson, on or about the 28th day of August, 1938, in the County of Harris and State of Texas, in and upon Frank Jewett did make an assault, and did then and there by said assault and by violence and by putting the said Frank Jewett in fear of life and bodily injury, fraudulently and against the will of the said Frank Jewett, take from the person and possession of the said Frank Jewett, one hundred and sixty-seven dollars in money, etc.
Appellant's main contention is that Frank Jewett was not the owner of the property, nor the party in possession thereof at the time it was taken.
It clearly appears from the record that Jewett was employed by Harry Hurst and Jim Welsh, the managers of the Houston Labor Temple, as a porter and night watchman. His duties began at seven p. m. and ended at seven a. m., during which time he was in charge of the building and had the care, custody and control over it and its contents. He handled no money and made no contracts; nor did he incur any obligations on behalf of the Labor Temple and paid no bills for them.
On the night in question, Jewett was alone at the Labor Temple when he received a telephone call from a man who gave his name as Ragsdale, who stated that he had a contract in his desk at the Labor Temple which he wanted, and was sending a friend for it who would hold a piece of paper up to the door and let him know that he was the person being sent for the contract. The man appeared and held up a paper and Jewett let him in. As soon as he had been admitted, he pointed a pistol at Jewett and commanded him to step over to a "popcorn parcher" which Jewett did. Barfield and Carson were then called to come in. Jewett was then commanded by the man with the pistol to lie down on the floor with his face down. The man with the pistol remained to guard him, while the other two men went to the locker located in a room about forty feet away, broke it and took therefrom about $172. The three men then marched him into a room, locked it and disappeared. Jewett had a key in his pocket and unlocked the door. He then ran out, gave the alarm and called the police. A short time thereafter appellant was arrested, taken to the police station and made a statement, naming the other parties who had participated in the commission of the offense. He also informed *Page 259 the officers as to the whereabouts of a portion of his loot, and a part of it was recovered. Appellant did not testify or offer any affirmative defense.
He contends that there is a variance between the proof and the allegations in the indictment as to the taking of the property from the person and possession of Jewett. It is his contention that the evidence shows that Jewett was merely a caretaker and did not have the care, custody and control of the Labor Temple.
A careful review of the testimony leads us to a different conclusion. The testimony shows that Jewett was in charge of said Labor Temple each night from seven p. m. to seven a. m. and spent each night therein. What was the object of his being in the building the entire night? It was his duty to protect the property therein from theft and the like. He was more than a mere caretaker and porter whose only duty was to clean up. He was placed in actual control and possession of the building and its contents.
In the case of Michaels v. State, 120 Tex.Crim. Rep.,49 S.W.2d 444, a question somewhat similar to the one under consideration was presented. In that case one, Jordan, was the owner of a garage. He had a negro boy, Madison, employed, who was left in charge of the garage at night. During the early part of the night while the negro was alone, appellant and another party appeared at the garage, drew a pistol on Madison and ordered him to get into a car that had been left there by a Mr. Keys to be stored for the night. Madison complied with the command, and with the appellant driving, the parties drove away. Appellant took the position that the car was taken from the possession of Keys and not from Madison. This court held that under this state of facts there was no variance and cited the case of Reese v. State, 239 S.W. 619. In the latter case, the court referred to the case of O'Donnell v. People,224 Ill. 218. There, one Joseph E. Dorgan was a watchman at the station of the Western Indiana Railroad. He was alone in the station when appellant and his confederates approached the door. Dorgan opened the door and one of the men jumped into the waiting room of the station, grabbed Dorgan and a struggle ensued. Dorgan succeeded in obtaining a pistol which was in the room, and all the parties fled. Upon the trial, appellant requested the court to instruct the jury that in order to convict him of an assault with intent to rob, the jury must believe, beyond a reasonable doubt, that the assault was committed with the specific intent and for the *Page 260 purpose of robbing Dorgan of his goods and chattels, THEN AND THERE BEING ON HIS PERSON. It was his contention that since the evidence showed that the parties intended to steal from thesafe in the station, the proof would not sustain a conviction for an assault to rob Dorgan, the watchman. The trial court declined to give this instruction and the Supreme Court of that State sustained the trial court's ruling.
In the case of State v. Montgomery 67 L. R. A., 343, 181 Mo. 19, it was stated that at common law it was never held that the property taken must belong to the person robbed. It was sufficient that the property belonged to the person robbed or some third person. As against the robber, it would seem that a servant has the same right to defend his possession of property left in his care as the owner would have.
It occurs to us that since the robber had the specific intent to obtain the property in question by the use of violence from the possession of the person robbed, whether such person was the owner thereof or not would not change the offense from robbery to theft. A person unlawfully deprived of the property which is in his care and under his control is entitled to its possession as against the robber. We deem the evidence sufficient to sustain the conviction.
Appellant challenges the correctness of the court's definition of the term "possession." The court defined "possession" to mean "the exercise of actual control, care and management of property, whether lawful or not; and it is sufficient in law when a person is charged with the offense of robbery by assault that the indictment allege the ownership in a person having possession of the property taken, as possession has been above defined, and it is not necessary that he be the absolute owner of said property." Appellant objected to that part of the instruction following the definition of "possession" because it was an instruction on the weight of the evidence, and no where in the charge did the court instruct the jury that if they should believe from the evidence that Jewett was only a custodian, and did not have the actual care, control and management of the property alleged to have been taken, or if they had a reasonable doubt thereof to acquit him.
We fail to see where it was a charge on the weight of the evidence. The uncontradicted testimony shows that Jewett was left in charge of the building and its contents to keep, guard and protect the same. Against what? To keep it from walking or crawling away? Certainly not. His duty was to *Page 261 guard and protect it from theft and robbery. That was one of the duties for which he was employed, and in doing so he had a legal right to resort to as much force as was necessary to protect it as against any unwelcome intruder.
The distinguishing feature between theft and robbery is that in theft the property is fraudulently taken from the possession of the owner or from some person holding the same for him; it is not necessary that the property be in the actual possession of the owner or the person holding the same for him; it is sufficient if he is in constructive possession thereof. In robbery the property must be taken by force and violence, not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber. The very fact that property is taken from a person by the use of firearms, violence or threatened violence is, within itself, sufficient to show that the person from whom it was taken was in possession thereof. There would be no occasion to resort to the use of violence directed to a person who is not in possession of property; nor could property be acquired by the means stated from a person who did not have possession thereof.
Under the facts of this case we do not believe the matter complained of shows error. In support of what we have said, we refer to the case of People v. Dean, 66 Cal.App. Rep., 602. In that case the facts are almost identical with the facts in the instant case. See also State v. Fitzsimmons, (Mo.)89 S.W.2d 670; State v. Montgomery, 79 S.W. 693, (Mo.); Jenkins v. State, 198 S.W. 878.
The other matters complained of by appellant have been examined by us and are deemed to be without merit.
No error of a reversible nature appearing, 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.
ON MOTION FOR REHEARING.