Robbery and theft are of the same family; violence, or the threat of same, in order to obtain property, being about the only difference. Reese v. State, 91 Tex.Crim. Rep..
By article 1412, P. C., asportation of stolen property is made unnecessary, and it is said therein that if such property has been in the possession of the alleged thief but for a moment — even though not moved from the presence of the owner — this is a taking, under our theft laws. Appellant insists that he at no time took the alleged stolen property into his possession. We think the record is against him on this point. Clearly the sack containing money of the owner passed completely into the possession of appellant, though this is not required under the authorities. The testimony quoted in our original opinion shows that after putting the money in said sack, in accordance with appellant's demand, the owner handed it to appellant with his left hand. Appellant took hold of the sack which was then at once completely released to appellant by the owner, who testified that he grabbed for appellant's gun with his right hand and struck appellant with his left hand. The owner testified: "I turned the money loose."
We fail to see any benefit to appellant arising from the owner having his mind made up not to let appellant get away with the money if he could prevent it. The guilt of appellant is based on his own acts and his own frame of mind, not those of the owner. If appellant assaulted, and, by said assault and violence, induced the owner to deliver to him for a moment the *Page 392 money of said owner, the case would be made out. See Harris v. State, 29 Tex.Crim. Rep., and cases cited therein. This case has been approved in numerous instances to be found in the citators. See, also, Jarrott v. State, 108 Tex. Crim. 427.
We have reviewed the charge of the court on temporary insanity and think it both fair and favorable to appellant.
The motion for rehearing will be overruled.
Overruled.