Conviction is for robbery by the use of a deadly weapon, punishment being assessed at death.
No bills of exception appear in the record. There seems to have been no objection whatever to the charge of the court, and no special charges were requested.
The sole question suggested is the sufficiency of the evidence to support the conviction and penalty. In the month of June, 1921 there lived in the town of Navasota one B. Isenberg; his son-in-law, Ben Silverstein and his wife, the daughter of Isenberg, living with him. Isenberg and Silverstein were engaged together in business of some kind, and Mrs. Silverstein worked in the store with them. Their living quarters were upstairs over the store. Some time during the night of June 23d, while Isenberg was asleep appellant made an assault on him with an axe and inflicted serious injury about his head and throat from which he remained for many days in the hospital. Mrs. Silverstein, who, with her husband, was sleeping in a room across the hall, heard a noise of some kind which awakened her; she turned on the light and went into her father's room and there she saw and recognized appellant who had at one time worked in a store adjoining Isenberg's. Appellant had an axe in his hand at that time and Mrs. Silverstein noticed blood on the bed and on her father; upon asking appellant what he was doing there, calling him by name, he knocked her down upon a cot or lounge, not, however, striking her with the axe. He struck her several times with his other hand and her screaming awakened her husband, Ben Silverstein, who started across the hall into the room. Appellant, hearing him, stepped behind the curtains of the door and as Silverstein started to enter struck him with the axe, knocking him back into the hall. Mrs. Silverstein having gotten away from appellant, turned and ran through a window on to an awning and continued to scream. Isenberg, in a semi-conscious condition, staggered into the hall and was again struck on the head with the axe. Only a small amount was secured by appellant, being about two dollars in money and some keys on a ring downstairs in a storage room a hat and some shoes which were identified as appellant's. About three days later when he was arrested he made a confession, admitting that he had secreted himself in the store room and had been locked up in there on the night of the robbery. The following is his confession:
"On the night of the attack I made on Mr. Isenberg last night one week ago, I thought Mr. Isenberg had some money. I had known him three or four years. I was lying on some sacks down stairs in the junk room, hidden so they would close me up when they closed up the store. I knew how the entire building was arranged and when I woke *Page 236 up I went upstairs to rob Mr. Isenberg and Mr. Silverstein. I carried the axe that I struck them with upstairs with me. When I got upstairs I hit Mr. Isenberg while he was asleep. I was hitting at his head. I hit him so that I would be able to get the money I thought he had. I was trying to rob them and thought Mr. Isenberg had money about him in bed and hit him so that I could get the money. I had seen Mr. Isenberg with right smart money the evening before, Wednesday evening. I hit Mr. Silverstein when he came in the room and ran off as soon as I got loose. I got the keys belonging to them before I left the building at the stair way. I was not mad at either of the parties when I hit them."
The confession shows a premeditated and carefully planned attack on the part of the appellant for the sole purpose of securing a sum of money which he thought Mr. Isenberg had somewhere about the premises. The State is not relying upon the confession alone to prove the corpus delicti, as that is established unquestionably by other evidence. Both Silverstein and Mrs. Silverstein recognized appellant. The two dollars which appellant got was taken off of a table in Mrs. Silverstein's room and the key ring from the desk downstairs in the store. Isenberg and Silverstein were engaged together in business. The possession of the property was correctly alleged in Isenberg, it being in their joint possession. It is suggested in the motion for new trial that the penalty inflicted is out of proportion to the crime proven. We have not been able to bring our minds in accord with this proposition. The amount of property secured is insignificant, it is true, but the motive which prompted the crime was evidently the hope of securing property of greater value. The assault shown by the evidence to have been made upon both Isenberg and Silverstein was of a deadly character and made with an instrument, which, in the manner used, was calculated and likely to produce death, and the fact that death did not result therefrom is of an accident than lack of design on the part of appellant. We are not aware of a case presenting a more cold-blooded, inhuman and unprovoked attack made upon sleeping inmates of a house for the sole and only purpose of securing to the perpetrator an opportunity to secure for himself money or property belonging to those upon whom the attack was made. We do not feel inclined under the facts of this case to say that the jury was without warrant in assessing the penalty of death.
The judgment of the trial court is therefore affirmed.
Affirmed.