(dissenting).
This is a conviction for robbery; the punishment, twenty years’ confinement in the penitentiary.
The sufficiency of the evidence to support the conviction is challenged.
*507Douglas, the injured party, was night clerk in charge of a tourist court.About 10 p. m., on the night of December 10, 1947, he was seated at the switchboard, or PBX, completing a telephone call, when appellant entered. What happened is shown from Douglas’ testimony which is copied at length in the opinion of affirmance to which reference is made without needless repetition.
There was no objection to the charge of the court; the complaint is that the evidence fails to support the verdict. This must be determined from the allegations in the indictment, the manner of submitting the case to the jury, and the facts.
There can be no controversy as to the facts. Appellant did not testify. No one was present but appellant and Mr. Douglas, whose evidence stands undisputed as quoted.
There are but two counts in the indictment; the first count charged that appellant made an assault upon Douglas, and by said assault, and by violence to Douglas, and by putting Douglas in fear of life and bodily injury, and by using and exhibiting a firearm, to-wit, a pistol, robbed Douglas of $152.00. This count was not submitted to the jury, and they were expressly told that the case was submitted upon the second count only. Said second count charged that the robbery was committed by an assault and violence upon Douglas, and by putting him in fear of life and bodily injury. In charging the jury the court told them that appellant was charged with robbing Douglas “by putting him in fear of life or bodily injury,” but when he required the necessary findings of the jury, he told them they must find from the evidence beyond a reasonable doubt that appellant made an assault upon Douglas, and put him in fear of life and bodily injury; in other words, before a conviction could result, the court required the jury to find both that an assault was committed upon Douglas, and that he was put in fear of life or bodily injury. It is in this respect that the present case differs from Horn v. State, 89 Tex. Cr. R. 220, 230 S. W. 693. The very first paragraph in that opinion shows there were three counts in the indictment: one charging theft, another charging robbery by the use of firearms, and another charging robbery by assault, and putting in fear of life or bodily injury. We quote from that paragraph the following:
“In submitting the case to the jury the trial judge withdrew the count for theft, and robbery with firearms, and eliminated all the elements of robbery in the first count save that charging a ‘putting in fear of life or bodily injury.’ ” (Italics ours.)
*508We are not here discussing the sufficiency of the evidence to support a conviction had the case been submitted alone upon “putting in fear of life or bodily injury.”
Looking to Articles 1138 to 1141, inclusive, Vernon’s Ann. Tex. P. C., 1925, and taking Mr. Douglas’ own evience, we find no violence upon him which would amount to a battery, nor do we find any facts which would amount to an assault. The latter part of subdivision 3 of Article 1141, supra, reads:
“But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault.”
Reverting to the testimony of Mr. Douglas, it shows that he never claimed to have seen in appellant’s pocket a “dangerous weapon or the semblance thereof.” He never saw or claimed to have seen anything which looked like a weapon of any kind. It is perfectly clear that from the demonstration which appellant made, Douglas was frightened because he thought appellant “might” have a pistol in his pocket and that he (Douglas) “might” get “hurt” if he didn’t let appellant take the money, and yet under the undisputed facts, appellant was not even guilty of a simple assault.
This being true, we cannot escape the conclusion that the evidence does not support the verdict and judgment, because it fails to show an assault on Douglas which was required under the charge submitted to the jury. In the opinion of my brethren the case of Bryant v. State, 129 Tex. Cr. R. 438, 87 S. W. (2) 722, is cited. We call attention to the fact that the court did not hold that the facts there present showed an “assault.” After reciting the threats and conduct of accused and his companion, the court said, “We think this action of one of appellant’s companions had the effect of producing upon Owens such fear of injury as to bring the violation entirely within the statute against robbery.” (Emphasis ours).
The judgment should be reversed and the cause remanded, and I respectfully register my dissent to its affirmance.