Adams v. State

354 S.W.2d 144, 171 Tex. Crim. 659, 1961 Tex. Crim. App. LEXIS 4567

Opinions

McDONALD, Judge.

Appellant was convicted in the district court of Comanche County for robbery by assault. His punishment was assessed at confinement in the penitentiary for eighteen years. This is a companion case to Cause No. 33,771, Curtis Lee Adams, 354 S.W. 2d 147, this day reversed because the evidence was insufficient to sustain the conviction for the offense of robbery by assault, and also on account of jury misconduct.

The state’s evidence reflects that two elderly sisters, Lona and Hester Anderson, had in excess of $15,000 taken from them on the night in question, most of which money was recovered. The facts briefly summarized show that the two sisters resided alone out from the city of Comanche; that they heard some men talking outside the house; that one of the men asked where Shoemaker lived; that they (the sisters) tried to go to Mr. Goosby’s house; that the men just “herded” them around; that Lona Anderson was carrying a lard bucket with all the money they had in it; that a man would not let them go where they wanted to go.

The following is taken from the testimony of the state’s witness, Lona Anderson, who was named in the indictment as being the person robbed:

“Q. Were you in fear of your life, Miss Lona? Were you? A. I think so.

* * * *

“Q. Did he take the bucket away from you? A. He just taken it out of my arms.

“Q. Just pulled it out of your arms — . A. And went off and never said a word.

‘Q. You didn’t give it to him, he took it from you? A. Yes, sir.

“Q. Did he make any threatening gestures at you, like he was going to hit you or anything? A. No, sir.

“Q. You didn’t give up the bucket because you were afraid, Miss Lona, he just took the bucket out of your hands without saying a word, and without touching you? A. That’s what he done.

* * * *

“Q. Pulled it away from your arm? Were you afraid of your life out there when this happened? A. I was scared so bad, I couldn’t think.”

The testimony adduced from the state’s witness Hester Anderson reflects:

"Q. All right. Did any of these men ever come over to you? A. That one did that night and come around and asked me— he didn’t ever speak to me and I asked him what he was doing there, just like I could have bit his head off, and he wouldn’t answer me and Lona said ‘Shoot him, Hester,’ and I reckon he thought I had a gun, he showed me his gun, he put it in his hand and laid it by his belt up here and showed it to me.

“Q. All right. Now, did this man let you all walk wherever you wanted to walk out there? A. No, sir. When I’d start, he’d go around me and stop me.

“Q. Just kinda herded you around, huh?

* * * *

“Q. What did he finally do, then? A. He turned around and grabbed the bucket away from Lona, and sort of shook her as she passed * *

This same witness further testified:

“Q. Was it dark that night? A. Certainly was. I couldn’t tell, if I’d of knowed ’em, who it was hardly. It was so dark.”

In viewing the evidence as a whole, we find, again reviewing the testimony of the state’s witness Lona Anderson, that she said:

“We started and they was one met us around there, just herded us around.”

This witness, the one who was alleged to have been robbed, never at any time testified that she even saw the pistol that her sister testified to seeing. She testified:

“Hester said he pulled out a pistol in his arm, I didn’t notice it, I was so —.

“Q. Did he scare you, Miss Lona? A. You ought to ask me how bad.

“Q. He did scare you? A. Yes, sir, and if I’d had a gun in my hand I’d have shot him.”

As previously stated, this same witness only stated, “I think so,” when asked if she were in fear of her life.

The witness Hester Anderson further testified on cross-examination that the pistol was not pointed at her; that she did not know whom she was talking about when she said “he.” She further testified that nobody touched either her or her sister. On re-direct she was asked:

“Q. Miss Hester, you testified awhile [sic] they pushed Lona, isn’t that right? A. Well, they jerked that plum hard. She was holding it tight. She was scared until she didn’t have no mind, and I was too, but I could hold up to talk a little, and they sorta jerked her, she was holding it so tight * * *.

“Q. Were you scared ? A. Certainly was.”

The indictment charged and the appellant was convicted of robbing Lona Anderson by an assault and by violence and putting her in fear of life and bodily injury.

Having carefully reviewed the evidence, we have concluded that the offense shown by the record is theft from the person and not robbery.

The judgment is reversed and the cause remanded.