The offense is robbery by assault; the punishment, confinement in the penitentiary for five years.
Appellant is a negro woman, who, according to her own testimony, was a prostitute at the time she was charged with the robbery of Arthur Leiser, a white man. In front of appellant's door was a gallery, which, according to the testimony of the arresting officer, was about "shoulder high", with five or six steps. Going from the sidewalk in front of the house to the bottom step of the gallery one would have taken six or seven steps. According to the testimony of the injured party, it was just within the door fronting the gallery that appellant robbed him. Touching the assault, we quote the testimony of Leiser as follows:
"I walked two and one-half blocks and this girl right here grabbed me and she said, 'Where are you going, honey?' I said 'It's none of your business', and she grabbed me by the waist and started scuffling, and it took me by surprise. It was like lightning struck me, and before I knew *Page 599 it she had me backed in the door, and she reached in my pocket and took the $80.00. I didn't miss it, but my clothes were all torn loose, and she put the pocket-book back, and I got about as far as from me to you (about ten feet away), and I looked and I said 'My God, that woman has my money', and I ran back there, and as I hit the front door she and some other girl came out. She said 'You are a damned liar. You haven't any money.' I said 'If you don't give me my money I am going to get a policeman.' She said 'Go get a policeman. I will tell him you stayed with me.' "
On cross-examination, the witness testified that appellant did not drag him up the steps and into the room. He declared that she had him up there before he realized anything had happened. He further testified that his arms and legs were free but that appellant held him around the waist. It appears further from his testimony that he did not discover that his money was gone until he noticed that his pocket-book was cross-ways in his back pocket. The transaction occurred about 11:00 o'clock in the morning. The arresting officer came upon the scene in a few minutes after the alleged assault. He searched appellant but found no money. The house was not searched. According to the testimony of this witness, he being a state's witness, appellant stated to him that she had not taken the injured party's money. She said that he had "stayed with her", having come into her room voluntarily. The witness further testified that Leiser, the injured party, told him at the time that appellant took hold of him as he was passing her house and told him to come into her room; that as she was pulling his coat he went with her; that as he got into the room appellant felt around the back of his pants; that she took his pocket-book out of his back pocket, extracted his money, and replaced the pocket-book. On the examining trial the injured party testified that appellant grabbed him by the arm, with the statement that she would show him "a good time for four bits"; that he jerked away and she grabbed him around the waist; that before he knew it, appellant had him right in her doorway. He further testified on the examining trial that he did not feel appellant get his pocket-book and did not learn that she had gotten it until he found the purse crossways in his back pocket. The bed in appellant's room showed that it had been recently occupied. There was a bowl nearby, with water in it.
Appellant strenuously insists that the evidence is insufficient to support a conviction for robbery by assault. In Reese v. State, 91 Tex.Crim. Rep., 239 S.W. 619, it was said that the actual or threatened violence to the person antecedent to the robbery is a distinguishing element between "robbery" and "theft". In Rylee v. State, 90 Tex. Crim. 482,236 S.W. 744, Judge Hawkins, speaking for the court, said that the degree of force is immaterial so long as it is sufficient to compel one to part with his property. In view of the conflict found in *Page 600 the testimony touching the assault, we are unwilling to give our sanction to a judgment convicting appellant of the offense of robbery. The actual violence to the injured party antecedent to the alleged robbery is not, in our opinion, sufficiently demonstrated by the testimony found in the record. The res gestae statement of the injured party testified to by the arresting officer as a state's witness is in direct conflict with the testimony given by the injured party on the trial. If believed, it warranted the conclusion that he voluntarily followed appellant into the room when she took hold of his coat. Moreover, there is serious conflict between the statement given by Leiser on the examining trial touching the assault and his testimony given on the main trial. Both statements were made under the sanction of an oath. In the light of the entire record, we are unable to reach the conclusion that the evidence is sufficient to support the conviction.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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 STATE'S MOTION FOR REHEARING.