
    SWEENEY v. STATE.
    (No. 8564.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.
    Rehearing Denied March 17, 1926.)
    1. Indictment and information <@=>189(11)— Abandonment of portion of charge referring to use of firearms in robbery, and prosecution only for robbery by assault, held permissible.
    Where indictment charged robbery by assault and with use of firearms, abandonment of portion of charge referring to firearms, and prosecution only for robbery by assault, is permissible practice.
    2. Criminal law <@=>365(1) — Proof of use of pistol in robbery after state abandoned charge referring to use of firearms in robbery held admissible as being part of main transaction.
    Under indictment charging robbery by assault and with use of firearms, proof that pistol was used in robbery was admissible, though, state abandoned charge referring to use of firearms, where use .of pistol was part of main transaction and could not be segregated from other facts showing robbery.
    3. Indictment and information <&wkey;189(l()— Abandonment of portion of charge referring to use of firearms ip robbery mitigates punishment assessable against defendant, and does not deprive ' state of right to develop all facts occurring at time of offense.
    Under indictment charging robbery by assault and with use of firearms, abandonment by state of portion of charge referring to use of firearms in robbery only mitigates punishment that can be assessed against defendant, and does not deprive state of right to develop all facts occurring at time of offense.
    4. Criminal law <@==>368(3).
    Proof of actions of party robbed at place where he was abducted to and left by defendant a few moments thereafter is admissible as part of res gestas.
    Commissioners’ Decision.
    Appeal from District Court, Galveston * County; Robt. G. Street, Judge.
    E. A. Sweeney was convicted! of robbery, and he appeals.
    Affirmed.
    Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, and Chas. U Black, of Austin, for appellant.
    
      O. H. Theobald, Co.' Atty., F. Spencer Stubbs, George P. Prendergast, and W. E. Cranford, all of Galveston, and Tom Gar-rard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The offense is robbery, and the punishment is five years in the penitentiary.

In the same count in the indictment the appellant was charged with robbery by assault and with the use of firearms. When the ease was called for trial the state announced, and the court noted on his docket, that the appellant would only be prosecuted for robbery by assault, and that that portion of the charge referring to firearms would be abandoned. This practice is permissible. Gonzales v. State, 226 S. W. 405, 88 Tex. Cr. R. 250; Crouch v. State, 219 S. W. 1099, 87 Tex. Cr. R. 115; Weaver v. State. 105 S. W. 189, 52 Tex. Cr. R, 12; Viley v. State, 244 S. W. 538, 92 Tex. Cr. R. 395.

Appellant by various bills of exception coniplains at the action of the court in permitting the state to prove on the trial of the case that a pistol was used in the perpetration of the robbery; it being his contention that, as the state had abandoned this portion of the indictment, it was improper to make the proof. The use of the pistol was so intermingled with and interrelated to the facts showing the robbery as to make it impossible to segregate one from the other. It was clearly a part of the main transaction, and as such was admissible.

The only effect that the state’s abandonment of the charge that the robbery was committed by the use of firearms was to mitigate the punishment that could be assessed against the appellant. He certainly will not be heard to complain that this course was pursued by the state, and because the state saw fit to prosecute on a charge where , the punishment was less.it will not be held to have abandoned its right to develop all the facts occurring at the time the offense is alleged to have been committed.

The facts show that the injured party was placed under duress by the appellant and carried to a place beyond Virginia Point, and there be got out of the ear in which he had been abducted by the appellant. The appellant complains at the action of the court in permitting the state to prove the actions and conduct of the alleged injured party at Virginia Point after the appellant had left him. The record shows that this happened but a few moments after,they had parted company, and the circumstances show clearly that it was a part of the res gestee.

We have examined the statement of facts very carefully, and have reached the conclusion that the appellant has had a fair trial, and has been given the lowest penalty under-facts entirely sufficient to support the verdict.

The judgment is accordingly affirmed.

PE® OURIAM.

The foregong opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion For Rehearing.

LATTIMORB, J.

The motion for rehearing is couched in the most general terms, averring first, that the trial court erred in overruling each and every ground of appellant’s motion for new trial, and, second, that this court erred in overruling each and every proposition in appellant’s brief. No new authorities are cited. No portion of the court’s opinion is pointed out as announcing an erroneous conclusion either, on the law or the ■ facts. Ample consideration seems to have been given to the various points raised when the' case was originally before us, and we perceive no error in the opinion.

The motion for rehearing will be overruled. 
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