Clemmons v. State

Court of Criminal Appeals of Texas

Clemmons v. State

161 S.W. 973, 72 Tex. Crim. 276, 1913 Tex. Crim. App. LEXIS 640

CourtCourt of Criminal Appeals of Texas

DecidedDecember 17, 1913

DocketNo. 2860.

StatusPublished

Cited by1 cases

This text of 161 S.W. 973 (Clemmons v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clemmons v. State, 161 S.W. 973, 72 Tex. Crim. 276, 1913 Tex. Crim. App. LEXIS 640 (Tex. 1913).

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Opinion

HARPER, Judge.

Appellant was prosecuted and convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary.

No objection was made to the introduction of testimony on the trial of the case, and the record is brought before us on the sole exception that the court failed to submit the issues of simple and aggravated assault.

The record discloses beyond doubt that an assault was made by appellant on Mr. Jones, and Mr. Jones says that he took a diamond ring from off his person, of the value of at least three hundred dollars. Appellant denies taking this ring, and testifies to facts which would perhaps justify him in making the assault. The court in his charge instructed the jury that if appellant did not take the ring they would acquit appellant. Under the evidence in this ease, when the court instructed the jury that if appellant did not take the ring from off the person of Mr. Jones to acquit him, it was a charge presenting the case as made by the testimony in behalf of appellant in as favorable light as he had a right to expect. If he took the ring under the circumstances detailed by Mr. Jones and the witnesses for the State, it was robbery, and when the court instructed the jury that if he did not take the ring, as he and his witnesses testify, to acquit, it was all he had a right to *277 ask. While, perhaps, it is true that, under' the evidence, if he did not take the ring, he might have been convicted of an assault, yet when the court made the criterion of his conviction, the fact of whether or not he took the ring as testified to b'y the State’s witnesses, this would not be error of which he would be heard to complain. In plain terms the jury was instructed if he did not take the ring from the person of Mr. Jones with the intent and purpose to appropriate it to his own use to acquit him, or if they had a reasonable doubt of such being the case to acquit. The case was presented in a way appellant will not be heard to complain.

The judgment is affirmed. Affirmed.

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HARPER, Judge.

Appellant was prosecuted and convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary.

No objection was made to the introduction of testimony on the trial of the case, and the record is brought before us on the sole exception that the court failed to submit the issues of simple and aggravated assault.

The record discloses beyond doubt that an assault was made by appellant on Mr. Jones, and Mr. Jones says that he took a diamond ring from off his person, of the value of at least three hundred dollars. Appellant denies taking this ring, and testifies to facts which would perhaps justify him in making the assault. The court in his charge instructed the jury that if appellant did not take the ring they would acquit appellant. Under the evidence in this ease, when the court instructed the jury that if appellant did not take the ring from off the person of Mr. Jones to acquit him, it was a charge presenting the case as made by the testimony in behalf of appellant in as favorable light as he had a right to expect. If he took the ring under the circumstances detailed by Mr. Jones and the witnesses for the State, it was robbery, and when the court instructed the jury that if he did not take the ring, as he and his witnesses testify, to acquit, it was all he had a right to *277 ask. While, perhaps, it is true that, under' the evidence, if he did not take the ring, he might have been convicted of an assault, yet when the court made the criterion of his conviction, the fact of whether or not he took the ring as testified to b'y the State’s witnesses, this would not be error of which he would be heard to complain. In plain terms the jury was instructed if he did not take the ring from the person of Mr. Jones with the intent and purpose to appropriate it to his own use to acquit him, or if they had a reasonable doubt of such being the case to acquit. The case was presented in a way appellant will not be heard to complain.

The judgment is affirmed. Affirmed.

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Bluebook (online)

161 S.W. 973, 72 Tex. Crim. 276, 1913 Tex. Crim. App. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemmons-v-state-texcrimapp-1913.

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