Dissenting. — I concur in that portion of the majority opinion relating to the signing of the information by the acting prosecuting attorney, but I am out of accord with that part of the opinion relating to the instruction under consideration and also the question of the sufficiency of the evidence. I think the giving of the instruction complained of did not constitute reversible error. While there is a conflict of authority as to the correctness of the rule stated in the instruction, I think the sound view to be that a forcible retaking of money lost in a gambling game, in accordance with the rules thereof, where there has been a voluntary payment by the loser to the *154winner, may constitute robbery, robbery being the felonious taking of personal property in the possession of another, from his person or immediate presence and against his will, accomplished by means of force or fear. (C. S., see. 8226.) As was said in the case of Coker v. State, 71 Tex. Cr. 504, 160 S. W. 366:
“If the party losing at cards voluntarily delivers the money lost to the winner’s actual possession, the winner owns the money, so that the forcible taking of it from his possession may constitute robbery.”
To the same effect see: Carroll v. State, 42 Tex. Cr. 30, 57 S. W. 99; 2 Brill’s Cyclopedia of Criminal Law, p. 1483, sec. 937. In the case of Blain v. State, 34 Tex. Cr. 448, 31 S. W. 368, it was said:
“In such ease, in a civil suit, the law would leave the parties in statu quo, and certainly in a criminal charge it would not recognize a retaking of the property, which involved all the elements of a premeditated robbery.”
I have examined the evidence and find a sharp conflict but sufficient competent evidence to support the verdict and judgment. Where there is substantial conflict in the evidence but sufficient competent evidence to sustain the verdict, it will not be disturbed. (State v. Silva, 21 Ida. 247, 120 Pac. 835; State v. Downing, 23 Ida. 540, 130 Pac. 461; State v. White, 33 Ida. 697, 197 Pac. 824; State v. Colvard, 33 Ida. 702, 197 Pac. 826; State v. Neidermark, 35 Ida. 703, 208 Pac. 232.)
In my opinion the judgment of the lower court should be affirmed.