On the trial the injured party, Arthur Leiser, gave testimony tending to show that the appellant, by the use of force, took eighty dollars in money from him. The arresting officer testified that the injured party made a statement to him immeditaely after the robbery. The record reflects that this statement was res gestae. We quote the statement as follows:
"My testimony is that this man told me at that time, while he and I and Rose Harris were in the room of Rose Harris, that Rose Harris got hold of him by the coat and told him to come in, and he said, 'She pulled my coat and I went in there,' and he said, 'After I got in there she kept feeling around my pants, and around the back of my pants.' He said she took his pocketbook out of his back pocket and put it back in, and he showed me the empty pocketbook."
The foregoing statement was received as original evidence. If believed by the jury, it would have warranted the conclusion that the injured party went into the appellant's room voluntarily and that there was no actual or threatened violence to his person antecedent to the robbery. The appellant testified that the injured party was in her room but denied that she took his money and declared that she did not forcibly push him up the steps to her door. She said that she was sitting in her window and called to Leiser, and he came voluntarily into her room. Leiser admitted that he did not discover that his money was gone until he left, *Page 601 and did not know when it was taken. According to his testimony, he found that his pocketbook was cross-ways in his back pocket, and, upon making an examination, he found that $80 had been taken therefrom.
The actual or threatened violence to the person antecedent to the robbery is a distinguishing element between "robbery" and "theft". Reese v. State, 91 Tex.Crim. Rep.,239 S.W. 619. The degree of force is immaterial as long as it is sufficient to compel one to part with his property. Rylee v. State, 90 Tex.Crim. Rep., 236 S.W. 744. One of the ingredients of theft from the person is that the theft must be "committed without the knowledge of the person from whom the property is taken, or so suddenly as not to allow time to make resistance before the property is carried away." Article 1438, P. C., 1925. Where force is used, the offense is robbery and not theft from the person. Gallagher v. State, 34 Tex. Crim. 306,30 S.W. 557. We are not prepared to say, after reviewing the testimony, that the version of the injured party given upon the trial, if believed by the jury, would not warrant the conclusion that the appellant took the property by use of force. On this question, however, we entertain grave doubt. The opinion is expressed that the res gestae statement of the injured party, testified to by the officer, when considered in connection with the appellant's testimony, would have justified the jury in concluding that no force was used. The jury might have believed from the facts in evidence that the appellant took the property without the knowledge of the injured party, no antecedent force being present. In the latter event, the offense was theft from the person and not robbery. If the appellant was guilty of theft from the person, she should have been acquitted on the indictment presented against her, namely, robbery by assault. The issue having been raised by the testimony, the court should have instructed the jury, in substance, to acquit appellant if they had a reasonable doubt that she committed an assault upon the injured party. Some doubt is entertained touching the identity of the alleged offense; that is to say, whether robbery or theft from the person. The writer does not feel satisfied that the conviction should be upheld on this appeal. Because of the peculiar circumstances attending the transaction, the apparent conflict between the res gestae declaration of the injured party and his testimony given upon the trial, together with the serious question as to the identity of the offense (assuming that one was committed), the writer is of the opinion that the state's motion for a new hearing should be overruled.
Overruled.