I concur with the majority of the court in a reversal of the case, because of the overruling by the court of appellant's motion for a continuance, which is made a ground in the motion for a new trial. While the appellant had a number of witnesses to prove his alibi, it appears that one witness Mrs. N.N. Corder, who had been served with process, was not present. Her affidavit is in the record showing that she would swear that appellant was at her house right after 2:30 p.m. in the evening of the day of the alleged theft. She lived about a mile from the scene of the theft, and the prosecutor places the occurrence at about 2:30. Under the circumstances, I believe appellant was entitled to a continuance of the case, or at least a postponement until said witness could be procured. See Baines v. State, 42 Tex. Crim. 510.
However, I do not concur in the view of the majority of the court, as strongly intimated, if not expressed, that the evidence does not sustain this conviction. The charge is theft from the person, and the indictment alleges in one count that "appellant fraudulently and privately took from the possession and person of B.D. Handy and without his knowledge and consent and so suddenly as not to allow time to make resistance before said property was carried away, the $65 in money," etc. This method of pleading under this statute is allowable, as the taking without the knowledge and so suddenly are not antagonistic but are phases of the same method or character of taking, and they are alleged here conjunctively. See Steele v. State, 10 Texas Ct. Rep., 983. Now, was this taking without the knowledge of prosecutor or so suddenly as not to allow time for interference? This question has been before the court in a number of cases. It has been held that the property need not be carried away; that the asportation is sufficient if the party attempting to take the property has it in his hand, though the hand be not withdrawn from the pocket. See Dukes v. State, 22 Texas Crim. App., 193. In Flynn v. State,42 Tex. 301, the prosecutor was aware that the defendant's hand was in his pocket, and asked him what he was doing. This was held a sufficient asportation as well as a sufficient taking without the knowledge of the prosecutor. In Green v. State, 28 Texas Crim. App., 493, the prosecutor Tolliver felt some one touch his pocket, which contained his purse, and this attracted his attention; looking around quickly he saw Green's (defendant's) hand passing from his (prosecutor's) pocket to his (defendant's) pocket, and saw in his hand his purse containing the *Page 334 money, etc. Prosecutor said nothing to defendant, believing he was in jest. The money was not returned and the pocket book was afterwards found lying upon the ground near the place where defendant was standing when Tolliver stopped him and charged him with having taken it. A $5 bill was taken out of the purse. The contention here was that prosecutor knew defendant had taken the purse, and by resistance could have prevented him from carrying it away, and that this being so, the crime was not theft from the person. It is said in the opinion, however, that the purse had already been taken without Tolliver's knowledge and suddenly; that he had it already in his possession when discovered and that the offense was complete. Now, in McLin v. State, 29 Texas Crim. App., 171, which appears to be invoked by a majority of the court, the prosecutor said after he had slept some time he was awakened by defendant putting his hand in his pants pocket which was tight, where he had his purse and money in it. "I felt him shove his hand on down into my pocket, and he then pulled my purse out of my pocket with the money in it. As he drew my purse and money out of my pocket I caught hold of his hand and took my pocket from him, and said, `That don't go.'" The court say in passing on this question the prosecutor knew defendant was shoving his hand into his pocket, and he knew this before defendant had taken the purse, and the judgment appears to have been reversed upon the proposition that prosecutor knew in that case that appellant's hand was being shoved into his pocket before he actually seized the pocket book. It occurs to me that this case is not in line with the other cases mentioned, especially the Green case, supra, and if followed the effect would be to nullify this statute. To illustrate, if A is conscious that B is running his hand into his pocket, and instantly the pocket book is seized, the mere fact that he knew a moment before the pocket book was seized that B had his hand in his pocket, would nullify the prosecution would be a strange doctrine; but as I understand that case, it intimates that if there had been in the indictment an allegation that the act was done so suddenly as not to allow time for interference, that the prosecution might have been maintained. I certainly agree to the proposition that if a party has knowledge that he is being robbed, or his money is being taken out of his pocket, if he believes it is in jest or if he is too stupid to interfere, it is not theft without knowledge. See Roquemore v. State, 99 S.W. Rep., 550. But I insist where a person may have knowledge a moment before the purse is seized, that the thief has his hand in his pocket but same is taken instantly, that the offense of taking without knowledge is complete. Certainly it would be complete in view of the other portions of the statute if after the prosecutor knows that the thief has his hand in his pocket he snatches the purse so suddenly as not to allow time for interference. This allegation is contained in this indictment. The proof here showed that the prosecutor while copulating with appellant had his pocket book containing $66.10 in his pocket; *Page 335 that appellant slipped her hand in his pocket, and he at once put his hand on that pocket, and his purse at the time was about half way out of the pocket, and she jerked her hand out and put it in her apron pocket, and said: "I ain't going to get your money," holding up her left hand at the time; that he did not at the time miss his pocket book, nor did he know of the loss thereof until some time after he had left the house and had gone to the blacksmith shop. Does this show that he had knowledge that when she was slipping her hand in his pocket that she already had seized the pocket book, or that she had extracted the money out of it and taken it from his pocket, or if it be conceded that he had knowledge that she was slipping her hand in his pocket to steal, does it not show that he interfered as speedily as was possible. It occurs to me there can be no question about one of these propositions being true: either she took his money without his knowledge, or she took it so suddenly as not to allow opportunity for interruption. I am not willing to nullify this statute regarding theft from the person by such subtilty of construction as will render any prosecution under it abortive.