
    EVANS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.)
    1. Cbiminal Law (§ 1097) — Appeal—Statement os' Facts — Review.
    Where an indictment charged in separate counts an assault with intent to kill, an assault with intent to rob, and an attempt to rob by using and exhibiting a firearm, an instruction that if defendant did unlawfully make. an assault on prosecuting witness, “and did then and there exhibit a firearm, to wit, a gun,” to him, with intent by such assault and violence and putting in fear of death and bodily harm to fraudulently take from the prosecuting witness’ person and possession personal property belonging to him with intent to appropriate the property to his own use, then he would be guilty as charged, etc., could not be held improper for failure to contain any limitation as to how defendant exhibited the gun, or whether the prosecuting witness was put in fear thereby, in so far as it contained the language quoted, without a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    2. Criminal Law (§ 1172) — Appeal — Instructions — Prejudice.
    Where the second count of an indictment charged accused with an attempt to rob, and the third count alleged an attempt to rob by using and exhibiting a firearm, the jury having found defendant guilty as charged in the second count, he was not prejudiced by an instruction permitting a conviction if he unlawfully made an assault on prosecuting witness and “did then and there exhibit a firearm, to wit, a guD,” to such witness, etc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159, 3163, 3169; Dec. Dig. § 1172.]
    3. Criminal Law (§ 1172) — Appeal—Erroneous Charge.
    An erroneous charge, which is beneficial to accused, and which imposes a greater burden on the state than is necessary, is not ground for reversal of a conviction.
    [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.
    Abe Evans was convicted of an attempt to rob, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was. convicted for an attempt to rob D. O’Leary on June 26, 1911, and his penalty fixed at 10 years in the penitentiary.

There is neither a statement of facts nor bill of exceptions in the record. There is but one question raised upon which we can pass.

The indictment is in three counts; first, charging an assault with intent to kill; second, for an attempt to rob. This second count, after the formal part, is that said appellant “did then and there unlawfully make an assault in and upon D. O’Leary, and by said assault and by violence to the said D. O’Leary, and by putting the said D. O’Leary in fear of his life and bodily injury, did then and there attempt fraudulently to take from the person and possession of the said D. O’Leary, personal property of the said D. O’Leary, with the intent then and there of him, the said Abe Evans, to appropriate the said property to his own use.” The third count alleges an attempt to rob by using and exhibiting a firearm, to wit, a gun.

The court in the charge stated to the jury that the indictment against the appellant was for the offense of assault with intent to rob, correctly defining an “assault,” an “assault and battery,” and “robbery” in accordance with P. C. art. 1327. Then gave article 1030, P. C., as defining the offense of an assault with intent to commit robbery. Then followed this: “The indictment in this case charges the offense as an assault with the intent to rob by violence and putting in fear of death or bodily injury. Now, I charge you that if you believe from the evidence, beyond a reasonable doubt, that the defendant did, as charged in the indictment, on-or about the 26th day of June, 1911, in the county of Dallas, and state of Texas, unlawfully make an assault upon said D. O’Leary as assault is hereinbefore defined, and did then and there exhibit a firearm, to wit, a gun, to said D. O'Leary, with the intent, then and there, by such assault and violence and putting in fear of death or bodily injury, to fraudulently take from the person and possession of the said D. O’Leary personal property of the said D. O’Leary with the intent then and there to appropriate the said property to his own use, then you will find the defendant guilty as charged, and assess his punishment at confinement in the penitentiary not less than two and not more than ten years.”

The appellant contends that this last paragraph just above quoted of the court’s charge was error, in that it had therein the words above italicized, to wit, “and did then and there exhibit a firearm, to wit, a gun, to said D. O’Leary,” and claims that thereby was included a part of the definition of the offense, or essential element necessary to be found without any limitation as to how he exhibited the gun, or whether it caused O’Leary to be put in fear of death or bodily injury, and was upon the weight of the evidence, and because before the trial began the third count in the indictment was abandoned and dismissed by the county attorney.

As to this latter objection, the record nowhere shows that the county attorney had abandoned or dismissed the third count.

We think that the charge of the court in including the words italicized and specially quoted above may have been improper— without a statement of facts we cannot tell. C. C. P. art. 743 (723); Shrewder v. State, 136 S. W. 1200; Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094; Fox v. State, 138 S. W. 413; Hampton v. State, 138 S. W. 1019, and tlie cases cited in the Shrewder Case, above.

But we are further of the opinion that it had no effect whatever on the jury, if error, because by their verdict they excluded any assault with a gun. Their verdict is, “We, the jury, find the defendant guilty as charged in the second count of the indictment, and assess his punishment,” etc.

It will be seen that by the latter paragraph of the court’s charge, above quoted, every element of the offense of an assault with intent to rob is submitted and required to be found by the jury before a conviction could be had, and perhaps an additional burden was put upon the state to also require them to believe that the appellant exhibited a gun to said O’Leary.

It is the established law in this state that an erroneous charge, which is beneficial to the accused, and which requires a greater burden upon the state than is necessary, is not ground for reversal. See section 807 and cases therein collated by Judge White in his Ann. C. O. P. And, besides, no reversible error is shown in the absence of a statement of facts. See section 846, White’s Ann. O. 0. P,

There is nothing else raised in the record that we can consider without a statement of facts.

The judgment is affirmed.  