Bailey v. State

BEAUCHAMP, Judge.

The offense is robbery from the person and the punishment is twelve years.

A proper analysis of the evidence in this case shows that appellant was a prisoner in the Travis County jail. He assaulted the jailer, and following a long and desperate struggle, took from him a bunch of six large jail door keys on two rings fastened together. The keys were used as a weapon of defense by the jailer and subsequently for offensive attack by appellant. At the end of the struggle appellant found himself still in jail but with the keys in his cell.

The indictment is under Article 1408, Penal Code, and it is of the essence of the crime that he take the article involved; that the property belonged to some other person (Smedley v. State, 30 Texas Rep. 216; Barnes v. State, 9 Texas Cr. R. 128); and that he intends to appropriate it to his own use. It appears he did not succeed in his purpose to escape jail and that he never in fact gained control of the keys. The officers had him in custody and the keys were in the jail with him. The evidence ■is silent as to who is the owner of the keys. It was his testimony and all the circumstances indicate that he merely meant to use them to lock the jailer in the cell while he made his escape. Under this state of facts he cannot be held for robbery by violence.

It is alleged he took six keys and the State claims only four in its evidence. This is presented as a fatal variance. We do not sustain the contention. Harris v. State, 34 Texas Cr. R. 498, 31 S. W. 382; Jones v. State, 64 Texas Cr. R. 510, 143 S. W. 621; Bracher v. State, 72 Texas Cr. R. 198, 161 S. W. 124.

For the failure of the State to prove the elements of the crime as defined by statute, the case is reversed and remanded.