(dissenting).
The majority concur in the reversal of the conviction and overrule the state’s motion for rehearing, Judge McDonald holding that the offense shown by the record is theft from the person and not robbery. Neither Judge Morrison nor the writer agreed.
Judge Morrison concurs in the reversal upon his conclusion that appellant’s Bill of Exception No. 1 requires reversal.
It is the view of the writer that Bill of Exception No. 1 as qualified by the trial judge does not show reversible error. Judge McDonald agrees with this view.
Bill of Exception No. 1 was qualified by the trial judge to show that the communication with the jury foreman was with full knowledge and acquiescence of appellant and his counsel in open court, appellant and his counsel being present, and that no objection was made or exception taken prior to the motion for new trial.
The bill of exception does not affirmatively reflect that the jury had not agreed upon the punishment to be assessed and no evidence relating to the incident was presented at the hearing on appellant’s motion for new trial.
I would grant the state’s motion.