
    CLEMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    Criminal Law (§ 1172) — Harmless Error— INSTRUCTIONS.
    In a prosecution for robbery, the court’s failure to submit the issues of simple and aggravated assault was not prejudicial to defendant, where the court instructed the jury to acquit if defendant did not take the ring, which he was charged to have taken, from off the person of another, though the evidence would have sustained a conviction for assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Frank Clemmons was convicted of robbery, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPEE, J.

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 $300. 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 case, 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 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 by 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 of which appellant will not be heard to complain.

The judgment is affirmed.  