Robbery at common law was esteemed an aggravated species of larceny, and the crown was at liberty to prosecute as for larceny, the only restriction being that if the goods taken were transported to another county, any prosecution in such county was confined to larceny, and could not include the graver offence of robbery, which *138was completed in the original county where the act was perpetrated. 1 Russ. on Cr. 868; 1 Hale’s P. C. 536. This doctrine has been generally accepted in the American States, and the conviction for larceny is held a bar to further prosecution for robbery, upon the familiar principle that the prosecution is not entitled to carve different offences out of one transaction and procure convictions for each. Hickey v. The State, 23 Ind. 21; The People v. McGowan, 17 Wend. 386: Hoskins v. The People, 16 N. Y. 344; The State v. Lewis, 2 Hawks, 98.
The two offences of robbery and larceny are more nearly assimilated under our Code than at common law. Under the last-named system, the weight of authority is that the fraudulent taking in robbery must have been from the person (3 Inst. 68; 1 Hale’s P. C. 532; 1 Hawk. P. C. 212; 4 Bla. Comm. 242); though Mr. East says it may have been from the person of another or in his presence. 2 East’s P. C. 707. The original Code followed the weight of authorities at common law, and required the taking to be from the person (Penal Code, art. 743); but by the amendment of November 12, 1866, the law was made to read “ from the person or possession of another; ” and this has since remained unchanged. Pasc. Dig., art. 2379; Rev. Penal Code, art. 722. And the two offences of robbery and theft of property over the value of $20 are punished similarly.
Theft is the fraudulent taking of personal property from another with intent to appropriate the same to the taker’s own use, and robbery is a similar taking for a similar purpose, done under additional circumstances of aggravation. That the talcing may have been “ by assault, or by violence and putting in fear of life or bodily injury,” renders it no less a fraudulent talcing ; and if the State elects to prosecute simply for the fraudulent taking, the defendant cannot complain because the proof shows not only this character of acquisition but something more. Under the indictment *139and the evidence, had the latter shown a sufficient61 putting in fear,” the court might have instructed upon robbery, and the jury might have found a valid verdict for that offence (Code Cr. Proc., art. 714, sect. 6); but this by no means implies that such course was imperatively demanded by the law and the facts in evidence. The evidence fully supports a verdict for theft, although it might perhaps have been made to support a conviction for robbery.
The action of the court in overruling defendant’s applications for continuance is not deemed erroneous. The law requires of a defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a, lack of diligence, apparent from the application or otherwise, in securing the attendance of his witnesses, its mandate is inexorable and the trial must proceed. In terms most explicit it informs the defendant and his counsel what shall constitute diligence, and if they see fit to rely upon matters outside the law to excuse their non-compliance with the law, they must take the consequences. The district judge was not authorized to direct them to whom the process for their witnesses should be delivered ; but the law gave them that direction, and informed them that attachments for non-resident witnesses must not be placed in the hands of the sheriff of the forum. Code Cr. Proc., art. 498; Chaplin v. The State, 7 Texas Ct. App. 87. Apart from this, the record shows that attachments were issued on December 16, 1879, for the absent witnesses, and that the case was called for trial on December 19th, when the defendant applied for his continuance. The court postponed the trial until December 23d; and although the witnesses are alleged to reside within a radius of between thirty and forty miles from the place of trial, no further attempt was made to, procure their attendance, and several of them were present at the trial and not placed upon the stand. From the evidence before us, it does not appear *140that the absent testimony could have been of a material character, or that the facts set forth in the application were probably true ; and this is the stand-point from which such applications must be viewed by this court, under the law as - it is.
While the statute prescribes that the names of the witnesses upon whose testimony the indictment is found shall be indorsed on the indictment (Code. Cr. Proc., art. 413), yet no mode is designated by which a failure to do so can be reached, and in the absence of further legislation the omission must be held as immaterial. No exception, either of form or of substance, lies to an indictment on that account (Code Cr. Proc., arts. 528, 529); and a motion to quash, strictly speaking, is not known to the Code. Code Cr. Proc., art. 522. If such defect can be reached at all, it must be presented in the shape of a suggestion to the court alleging a defect in its records, and the defect may usually be supplied at any time without delay or embarrassment. It appears from the record that the motion asking that the county attorney be required to indorse on the indictment the names of the witnesses was not in fact brought to the attention of the court until the motion for new trial was filed and presented. It was then too late.
The ownership of the property was proved as laid, and also the want of consent of both owners. For the purposes of this prosecution the bailees were the owners; and, besides, more than enough of their own money was taken to justify the conviction.
The judgment is affirmed.
Affirmed.
This opinion applies also to the case of Ed Boles v. The State, appeal from Burleson County, the judgment in which is also affirmed.