Opinion
No. 22972.
Delivered December 6, 1944. Rehearing Denied (Without Written Opinion) January 24, 1945.
1. — Robbery — Evidence.
In prosecution for robbery, where indictment charged that defendant had taken a gold watch from the victim, evidence which did not establish that the watch claimed to have been taken from the victim was a gold watch was insufficient to sustain conviction.
2. — Evidence — Rule Stated.
Although property, in robbery prosecution, is described with unnecessary particularity, it is incumbent upon the State to prove the descriptive allegations as charged.
Appeal from District Court of Tom Green County. Hon. O. L. Parish, Judge.
Appeal from conviction for robbery; penalty, confinement in the penitentiary for five years.
Reversed and remanded.
The opinion states the case.
Wm. E. Davenport, of San Angelo, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
The offense is robbery. The punishment assessed is confinement in the state penitentiary for a term of five years.
There is but one question in this case which requires our attention, and it relates to the insufficiency of the evidence to meet the descriptive averments of the property claimed to have been taken. It was charged in the indictment, omitting the formal parts thereof, that "on or about the 26th day of February, A.D., 1943, and anterior to the presentment of this indictment, in the County and State aforesaid, Curtis Ware did, then and there unlawfully in and upon J. S. Schooley, did make an assault; and did then and there, by the said assault, and by violence to the said J. S. Schooley, and by putting the said J. S. Schooley in fear of life and bodily injury, fraudulently, and without the consent of the said J. S. Schooley, take from the person and possession of him the said J. S. Schooley, one 'gold' watch," etc.
We have read the record with great care but do not find any evidence that the watch alleged to have been taken from Schooley was a "gold" watch. Consequently, the proof in this case fails to meet the descriptive allegations of the property as charged in the indictment. It is a well-settled rule in this state that although the property is described with unnecessary particularity, it is incumbent upon the State to prove the descriptive allegations as charged. See Coffelt v. State, 27 Tex. Cr. App. 608; Loyd v. State, 22 Tex. Cr. App. 646; Early v. State, 56 Tex.Crim. R.; Tucker v. State, 59 Tex. Crim. 291; Robinson v. State, 60 Tex.Crim. R..
For the error herein pointed out, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.