Polk v. State
This text of 246 S.W.2d 879 (Polk 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.
Opinions
This is a conviction for the primary offense of theft from the person, with the maximum punishment of seven years’ confinement in the penitentiary affixed by reason of a prior conviction for robbery by assault.
Bustillos, the injured party, was seated at the counter of a cafe when appellant asked him to buy him “a beer.” As to what then happened we quote from the testimony of Bustillos as follows:
[76]*76“I told him I did not have any money. He then stuck his right hand in my left trousers pocket, and when I felt him putting his hand in my pocket, I grabbed his wrist and he jerked his hand away and this threw me on the floor. I had six dollars and twenty cents in my pocket. This defendant left when I was thrown on the floor. He took the bills from me and left me twenty cents.”
Other witnesses corroborated this testimony.
Appellant did not testify or offer any affirmative defense. He contends that the state’s testimony shows robbery by assault rather than theft from the person.
In Van Arsdale v. State, 149 Texas Cr. Rep. 639, 198, S. W. 2d 270, we had occasion to point out that a distinction between robbery and theft from the person lies in the fact that in robbery there must exist the actual or threatened violence to the person antecedent to the robbery, which is not true of theft from the person.
We are constrained to conclude that the offense here shown was that of theft from the person.
The effect of appellant’s exception to the court’s charge was that the jury should have been instructed to acquit appellant if Bustillos resisted to any extent or with any degree of force the efforts of the appellant to take his money. All the testimony warrants the jury’s conclusion that the money was taken from Bustillos so suddenly as not to allow Bustillos time to make resistance. The facts, therefore, did not warrant any such instruction.
The judgment is affirmed.
Opinion approved by the court.
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Cite This Page — Counsel Stack
246 S.W.2d 879, 157 Tex. Crim. 75, 1952 Tex. Crim. App. LEXIS 1676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-v-state-texcrimapp-1952.