
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 21, 1911.)
    1. Criminal Law (§ 1090) — Appeai>-Review —Bill of Exceptions — Necessity.
    Ground of motion for new trial, assigning error in admitting evidence and referring to a bill of exceptions omitted from the transcript, cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.]
    2. Robbery (§ 27) — Alibi—Evidence—Sufficiency.
    Evidence in a robbery trial, held insufficient to raise an issue of alibi requiring instructions.
    [Ed. Note. — For other cases, see Robbery, Dec. Dig. § 27.]
    3. Robbery (§ 24) — Evidence—Sufficiency.
    Evidence held to sustain a conviction of robbery.
    [Ed. Note. — For other cases, see Robbery, Dec. Dig. § 24.}
    4. Robbery (§ 20) — 'Variance—Amount Taken.
    In a robbery trial there is no fatal variance between a charge that something over $11 was taken, and proof that it was $10 and some cents.
    [Ed. Note. — -For other cases, see Robbery, Cent. Dig. § 27; Dec. Dig. § 20.]
    Appeal from Criminal District Court, Galveston County; C. W. Robinson, Judge.
    Payton Robinson was convicted of robbery, and be appeals.
    Affirmed.
    Thos. C. Turnley and W. F. Kelly, for appellant.
    C. E. Lane, Asst Atty. Gen., for tbe State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DAVIDSON, P. J.

Appellant was convicted of robbery; bis punishment being assessed at five years confinement in tbe penitentiary.

Tbe first ground of tbe motion for new trial recites that tbe court erred in admitting tbe evidence of tbe witness Jarl over bis objection, as to statements made by bim and other persons in tbe absence of defendant, and as to bis action in making tbe arrest of defendant; such evidence being immaterial and irrelevant and highly prejudicial to tbe defendant, all of which will be shown by statement which appears from defendant’s bill of exception No. 1. An examination of this transcript does not show bill of exception No. 1. If it was taken, it is omitted from tbe transcript. Therefore this matter cannot be reviewed. Tbe matter as set out in tbe statement of facts is not sufficient to be considered as a bill.

Tbe next ground insisted upon by appellant is that tbe court should have charged upon the law of alibi. As we understand tbe statement of facts, tbe question of alibi is not raised or suggested. A special charge was not asked in regard to the matter. Tbe court gave this charge: “If you believe from tbe evidence that Katie Pickens got the money of Edward Denke, you will acquit the defendant, or if you believe from tbe evi-1 dence that Edward Denke unlawfully obtained tbe money from Katie Pickens, and that the defendant on that account took the money from said Edward Denke, you will acquit bim, or, if upon either of these propositions you have a reasonable doubt, you will acquit tbe defendant.” If tbe question of alibi is in tbe case at all, it is by reason of substantially these facts: Denke, tbe alleged injured party, stated that he and a friend were out having a good time, and that be had something over $10 upon bis person; that along about midnight they encountered the negro girl, Katie Pickens, and be and bis friend went with Katie Pickens to her place of abode, which was shown to be a den of prostitution; that when be went in be thought be was being carried there to play music for tbe girl; that after reaching tbe bouse be discovered that be was mistaken, and she insisted upon bis going in the room with her, and took bim by tbe arm and took bim in tbe room; that she proposed that they go to bed, which be declined. He says that she then began to hollo, and be ran out, and tbe defendant made bim bold up bis hands and took bis money from bim. A friend of tbe defendant who was with bim, a man named Sabic, testified that tbe girl began to hollo. He did not seem to know much about what occurred afterwards, as be ran out of tbe bouse for a policeman. The inmates of the bouse, several of them, testified that two white men came there with tbe girl Katie Pickens, and that Sabic sat with tbe crowd where they were playing cards, and Denke went in tbe room with the girl; Sabic stating that be did not wish a girl. After Denke and Katie Pickens had been in the room awhile, a commotion was created; the girl was holloing. The mistress of tbe establishment rushed in, and Denke stated that tbe girl bad gotten bis money. Appellant was there about tbe room. It is not right clear by tbe testimony whether be went in tbe room where Denke and the girl were or stood in the door. Under their testimony Denke claimed that tbe girl took bis money, and when they went in tbe room he bad tbe girl down on tbe bed choking her; that she was making quite a noise, but when they threatened to call tbe policeman tbe crowd scattered, and defendant, among tbe others, ran from tbe bouse. He was subsequently arrested by tbe officers.

Under this state of facts, we are of opinion that tbe question of alibi is not suggested. Appellant’s contention is that tbe law of alibi should have been given, because under tbe defensive testimony be was not in the room where the girl and Denke were; that be was in tbe adjoining room. . This does not in our judgment suggest tbe law of alibi; Tbe court, we think, gave a proper charge to tbe effect that if tbe woman got the money, and appellant did not, be would not be subject to conviction. Appellant was there; be was not absent; he did not claim to be absent; bis claim was that be bad nothing to do with it; that it was a matter between Denke and the girl, and that the girl got the money, and not be (appellant). We are therefore of opinion the court did not err in not charging on the law of alibi.

It is also insisted the evidence is not sufficient. If Denke’s testimony is the truth, and the jury believed it, we are of opinion that the case is sufficiently- made out. Denke states that, when he went in the room with the girl, she holloed, and the defendant immediately rushed up and ordered him to hold up his hands, threatening to shoot him if he did not, and proceeded to take his money, which amounted to $10.30. This is sufficient evidence to show the forcible taking of the money. Under his testimony, of course, he was not guilty; but the jury saw proper to believe Denke’s testimony, and this was within their authority.

It is contended there is a fatal variance’ between the allegation in the indictment and the evidence introduced to support that allegation, in this: The indictment alleged that it was something over $11 taken; whereas, Denke testified it was $10 and some cents taken. This is not a variance. Under the allegation there was $11 and some cents, it will be sufficient to show that any amount of money was taken. It is not necessary to show that the exact amount stated in the indictment was taken. It is sufficient if any amount was taken.

Finding no reversible error in the record, the judgment is affirmed.  