In the recent case of Green v. State, the majority of the court expressly overruled the case of Murdock v. State, 52 Tex. Crim. 262. In doing so Judge Prendergast used this language: "In charging robbery it is absolutely essential that some one or the other or all of the manners in which it may be committed, that is, by assault or by violence, or by putting in fear of life or by putting in fear of bodily injury, shall be alleged and if it is sought to inflict the greater penalty for the offense, then, in addition to the above necessary allegations in the indictment, the pleader must further allege that, whichever way, or all the ways above charged have been used, the fact that `a firearm or other deadly weapon was used or exhibited in the commission of the offense.'" The indictment in this case charges that appellant "did unlawfully and wilfully by using and exhibiting a firearm, to wit, a pistol, fraudulently take from the person and possession, and without the consent, and against the will of J.A. Hunter, $31.25, lawful money of the United States *Page 86 of America, etc. It will be noticed that the indictment does not charge any of the means, either of assault or violence, or putting in fear of life or bodily injury as held in the Green case, supra, to be "absolutely necessary." In setting out the formal parts of the indictment the pleader used the stereotyped and unnecessary statement "by force and arms in the county," etc. My brethren have taken this allegation and made it supply a necessary averment in the indictment growing out of the definition of the statutory offense of robbery. Nowhere that I have been able to discover has the expression "by force and arms" been held any longer necessary in an indictment. It is not so even in England; it is not so in Texas by express provision of Code of Criminal Procedure, article 460. Article 460 expressly provides that it is not necessary to allege "force and arms" in an indictment. If "force and arms" is a necessary allegation or takes the place of a necessary allegation, the Legislature can not dispense with its averment and this by all the authorities. It is not a part of the offense; it does not form any element in the definition of the offense. If the expression "by force and arms" is to be taken as a charge in the indictment of "violence," then wherever that term occurs in an indictment it becomes a part of the accusation in the indictment against the accused. If a party wishes to charge, for instance, theft from the person and the term "by force and arms" is used in the indictment, it would not charge that offense but it would charge robbery. And so of theft in any of its forms. Suppose a party was charged with fornication or adultery, then if the pleader should happen to use the expression "by force and arms" he would have a case charging the offense by means of "violence." Suppose a party was charged with seduction, and the indictment charged that he did "by force and arms" seduce, that term being equivalent to "violence," he would charge a seduction "by violence" and not by the insinuating arts and means of beguilement by which the amorous passion of the seduced is won. The expression "by force and arms" has never been at any time held to take the place of a necessary allegation setting forth the definition of an offense. The cases cited by my brethren are not in point and in fact have no bearing on the proposition involved. In overruling the Murdock case it was eliminated as authority in Texas and it is, therefore, no longer the law unless the majority opinion has reinstated it. I am at a loss and really do not know whether my brethren intend to restore the Murdock case and overrule the Green case, or to hold that the Murdock case and the Green case are both authority, although they have held that they are flatly in contradiction with each other. I am fully persuaded, however, whatever may be meant in these contradictory opinions, that the term "by force and arms" used in the indictment does not charge either an assault or violence, or putting in fear of life or bodily injury. I had hoped that in deciding these cases that the rule would be fixed so that hereafter the bar and bench might understand what was a sufficient indictment in charging robbery. *Page 87 Under the Green case it was necessary to charge in the indictment one of the means. Under the opinion of the majority in this case it is unnecessary to charge any of said means. In the Murdock case it was held that where the indictment understood to charge both definitions of robbery, one being noncapital and the other capital, they could not be charged in the same count. That question does not arise in this case. The indictment simply was undertaking in this case to charge a capital offense. If it was necessary as my brethren held in the Green case that one of the statutory means, that is, an assault or violence, or putting in fear of life or bodily injury, was necessary, then this indictment is fatally defective for neither of the means is charged in this indictment.
I say this much inasmuch as I do not understand what is intended to be decided in this case, viewed in the light of the Green case. This judgment under the Green case ought to be reversed. I therefore enter my dissent.