Two points are urged on this rehearing, viz: That the case should not have been submitted to the jury on the theory of robbery by assault and violence; also that the testimony is insufficient. Both points were discussed in our original opinion. We appreciate the ability and unfailing courtesy of appellant's attorneys, but find ourselves of the same opinion as when we originally wrote, after examining the motion and reviewing the authorities therein discussed.
Under the charge as given there could be no conviction except the testimony show beyond a reasonable doubt that Mimms made an assault on Sallis, and by said assault, or by violence to Sallis, or by putting Sallis in fear of life or bodily injury, took from him the property described. In other words, if the assault had been proved, then, if by either one of the three ways set out in article 1408, P. C., towit, by assault, — by violence, — by putting in fear, etc., the property was obtained, the offense would be complete. On the facts as told by state witnesses, there could be no question of the assault, which, as defined by the charge, would be "Any threatening gesture showing in itself, or by words accompanying it, an immediate intention, coupled with an ability to commit a battery." That appellant had a pistol in his hand, and, standing a few feet from Sallis and behind him, ordered Sallis not to turn or move; that he was obeyed by Sallis, as stated by the latter, because he feared for his life; that Sallis sitting near the cash register, sat there without turning or moving because, as he said, he knew appellant had a pistol and was in fear of his life; that appellant, holding the pistol in his hand, went to the cash register and rifled same, took therefrom money under the control and management of Sallis is undisputed. This would, if true, make out a *Page 558 plain case of assault, and a taking of money by said assault and by putting in fear of life, etc. Hunt's case, 13 S.W. 858, is not in point. Hunt drew a knife upon a man who was out of reach, walking away, and never saw the knife or knew that Hunt had drawn it. The court in his charge defined an assault as the use of any dangerous weapon, or semblance thereof, in an angry and threatening manner, with intent to alarm another, andunder circumstances reasonably calculated to effect thatobject. This court correctly held the charge to be without application to the facts, but we are unable to see any analogy between the holding in that case on its facts and the charge given in this case, on its facts, except that in each case the back of the assaulted party was turned toward the accused, which might, in Hunt's case, keep it from being an assault, under the charge, but not so here.
The fact that in the charge the court included the words "or by violence" would not constitute reversible error. There are many kinds of violence, and the statute does not mention physical injury to the person as the kind of violence intended. The Powell case, 60 Tex.Crim. Rep., 131 S.W. 590, cited, was not reversed upon the proposition therein contained which might make it analogous. The Abernathy case,55 Tex. Crim. 77, 114 S.W. 1178, also cited, was reversed for failure to prove material averments, in a swindling case, upon which apparently the state relied. Certainly in this case, if the state had alleged that the robbery was committed "by violence" alone, and if the record showed that such averment was not supported, a reversal should have been ordered. In this case, however, there was proof of an assault and proof of a putting in fear, and we are not prepared to say that there was not proof of violence. We think the evidence sufficient to justify the jury in their verdict.
The motion for rehearing will be overruled.
Overruled.