Appellant in his motion for rehearing again presents some of the same questions which were thoroughly considered before the original opinion was rendered in this cause. He presents no authorities that were not then considered. We think there is nothing in these questions that calls for any further special discussion, except about the appellant's bills of exceptions as to what he claims were leading questions asked by the district attorney of the State's witnesses, Nelse Shanklin and Willie Emmerson. Under all the rules each of these bills are clearly insufficient to require this court to pass upon the questions attempted to be raised. The rules of what is necessary for bills of exceptions to show are fully laid down and the authorities cited by Judge White in section 857, p. 557, and section 1123, p. 732, in his Annotated Code Criminal Procedure. Judge White also in section 1105, pp. 719, 720, lays down the rules and cites the cases wherein leading questions are permissible and, where even asked and permitted to be answered, are not reversible error. It may be that the questions complained of by appellant by these two bills are leading, but neither presents the matter in such a way, as shown by the authorities cited and those cited on that point in the original opinion, so as to show whether any or all of the exceptions permitting leading questions may not have applied.
However, he does raise a new question, not raised in the court below, nor anywhere by his brief or otherwise, nor in any way called to our attention or noticed by us, until the filing of his motion for rehearing.
That new question is: he claims the indictment herein is wholly void and insufficient, because it is vague, uncertain and indefinite, and duplicitous, and charges appellant in the same count with the commission of a capital and common felony, contrary to law.
It is our opinion that even if the indictment was duplicitous, as claimed by appellant, he not having made any motion to quash it before verdict found, under the authorities, waived such defect. Nicholas v. State, 23 Texas Crim. App., 377; Coney v. State, 2 Texas Crim. App., 62; Tucker v. State, 6 Texas Crim. App., 251; Rummage *Page 453 v. State, 55 S.W. Rep., 64, and the authorities cited in the opinion in said cases.
However, we do not dispose of this question on this point alone, because it is an important one, and calls for a decision directly on the question. The appellant cites only the case of Murdock v. State, 52 Tex.Crim. Rep., to support his contention. This is the only case supporting appellant's contention we have been able to find, after the most diligent search. The only statute we have defining robbery is Penal Code, article 1327 (856):
"If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another, any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and, when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death, or by confinement in the penitentiary for any term not less than five years."
In our opinion, robbery under this statute may be committed in either one, or any two or three, or all four of the following ways: First, "by assault;" second, "by violence;" third, "by putting in fear of life;" fourth, "by putting in fear of bodily injury." If the offense is committed in either or all of these ways, and not by the use or exhibition of a firearm or other deadly weapon, the penalty is confinement in the penitentiary for life, or any term not less than five years; but, under whichever or all of these ways the offense is committed, if committed "when a firearm or other deadly weapon is used, or exhibited," and the pleader so alleges, and proves, the punishment is by death or by confinement in the penitentiary for any term not less than five years. 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."
An indictment merely alleging that robbery had been committed by the use or exhibition of a firearm or other deadly weapon, without also alleging that it was committed in one or the other or all of the ways of "by assault, or violence, or by putting in fear of life or bodily injury," would charge no offense at all.
Of course, in discussing the allegations of the indictment, we assume that it also contains, as the indictment in this case does, the other necessary allegations, that the defendant did "fraudulently take from the person or possession of another (naming him) certain property *Page 454 (describing it) with intent to appropriate the same to his own use," and deprive the owner thereof.
The indictment in this case shows to have been drawn in exact accordance with the forms laid down by Judge White under this article in his Annotated Penal Code, in sections 1464 and 1465, showing clearly and unequivocally that the offense charged in this case was so charged as to call for the higher penalty of death, and not the lower penalty of life imprisonment in the penitentiary only. The indictment on this point is as follows: That the appellant on or about May 1, 1910, and anterior to the presentment of this indictment in the county of Robertson and State of Texas, "did then and there unlawfully and wilfully make an assault upon Nelse Shanklin, and then and there by the said assault and by violence to the said Nelse Shanklin, and by putting the said Nelse Shanklin in fear of life and bodily injury, and then and there by using and exhibiting a firearm, to wit, a pistol, did then and there fraudulently take from the possession of said Nelse Shanklin, without the consent and against the will of the said Nelse Shanklin," etc. Then follows a description of the property and the other necessary allegations to completely charge the offense. It is true that identically the same form of indictment was used in Murdock v. State, supra, but the Murdock case was incorrectly decided and is hereby expressly overruled. Neither that indictment, nor the indictment in this case, charges two separate and distinct offenses, but they charge only one offense, and the necessary allegations in that as in this, were made so as to authorize the infliction of the higher penalty. Two offenses were not charged — one only. Neither the case of Heineman v. State, 22 Texas Crim. App., 44, nor Hickman v. State, 22 Texas Crim. App., 441, is in point, because in each of those cases two separate and distinct offenses were clearly charged in one count only.
The motion is overruled.
Overruled.