
    BURRUS v. STATE.
    (No. 3385.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    1. Indictment and Information (§ 110) — Language of Statute — Theft from the Person.
    An indictment for theft from the person, which conforms to the statute and the form for indictment under the statute in White’s Ann. Pen. Code 1895, § 1531, is sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.]
    2. Larceny (§ 30) — Theft from the Person —Indictment—Sufficiency.
    Under Code Cr. Proc. 1911, art. 468, providing that in indictments for theft of money it is sufficient to describe the property in general terms as money, an indictment for theft from the person, which describes the money stolen as “twenty dollars of lawful money of the United States,” sufficiently describes the money.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 64-75, 99; Dec. Dig. § 30.]
    3. Criminal Law (§ 1086) — Record—Review —Refusal of Instruction.
    The record must show that instructions requested by accused and refused by the court were presented to the court before it read its charge, or the ruling will not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dee. Dig. § 1086.]
    4. Criminal Law (§§ 1064, 1091) — Assignments of Error — Review.
    Assignments of error complaining of the refusal of requested charges will not be considered, where neither the motion for new trial nor tlie bill of exceptions point out why it was error to refuse the charges.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2676-2684, 2803, 2815, 2816, 2S18, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. §§ 1064, 1091.]
    5. Criminal Law (§ 829) — Instructions— Refusal of Instructions Covered by the Charge Given.
    It is not error to refuse requested instructions embraced in the court’s charge.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    6. Criminal Law (§ 770) — Evidence—Instructions.
    The court should submit affirmatively accused’s special defense established by his evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    7. Larceny (§ 44) — Evidence—Admissibility. ■
    Where, on a trial for theft from the person, accused showed that he did not take prosecutor’s money with the intention of appropriating it, but merely pulled it out of prosecutor’s shirt front to show to him that he had not lost it, evidence that accused and prosecutor were Odd Eellows was admissible.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 134; Dec. Dig. § 44.]
    Prendergast, P. J., dissenting in part.
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    R. N. Burrus was convicted of crime, and he appeals.
    Reversed and remanded.
    Nicholson & Davenport, of Wichita Ealls, for appellant. 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
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of the theft of money from the person of T. P. Berry, and his punishment assessed at three years in the penitentiary.

The indictment is in accordance with the statute and the form for such indictment under the statute laid down by Judge White in his Annotated P. C., section 1531, and is sufficient and valid. The money stolen is described as “twenty dollars of lawful money of the United States.” This was a sufficient description of the stolen money as prescribed by our statutes, and so held by many decisions of this court. Article 468, C. C. P.; Green v. State, 28 Tex. App. 493, 13 S. W. 784; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Wofford v. State, 29 Tex. App. 536, 16 S. W. 535; also Sims v. State, 64 Tex. Or. R. 442, 142 S. W. 572 and Eerrell v. State, 152 S. W. 901; and the cases cited and reviewed in those decisions. Also, see the case of George McAdams v. State, from Milam County, 172 S. W. 792, this day decided.

Some of the facts were established without controversy. The testimony of the witnesses on some of the other issues is conflicting. We will give substantially the material testimony.

Appellant and Berry were strangers in Wichita Palls, where this offense is alleged to have been committed. They met for the first time in the evening of May 18, 1914, in a saloon. Berry was very drunk. The barkeeper, upon Berry’s request, handed him $20, two $10 bills. Appellant saw this. Berry testified that he first met appellant in the saloon in the evening of May 18, 1914; that he was then drunk; that he did not remember how long he and appellant were together that evening before they were arrested; that he had $20 in two $10 bills; that he had it in a note or pocket book, which he exhibited and identified on the trial. He did not remember how much other money he had that evening. “I had never seen Burrus until that day. I don’t know why I took up with him, unless it was that I was pretty drunk. Burrus had been with me, following me around, that evening before he took my money from me.” On cross-examination, he testified:

“I had never seen Burrus before that day. I was too drunk to take care of myself. I remember getting the money at a saloon where I had left it and putting it in a notebook. *_ * * I don’t know whether or not Burrus tried to get my money, as I said I was so drunk that I don’t remember.”

Re-examined by the state, he testified that the firát time he saw Burrus was on the date specified, and said:

“I did not know him then, and I don’t know him now, except that I saw him at the examining trial and seen him when he was out on bond the other day. I don’t know anything about him at all. I did not tell Burrus that he could get my money. I did not give Burrus consent to get my money. I have never seen Burrus before the day I was robbed.”

J. W. Rawls, a policeman at the time in Wichita Ealls, testified that he saw appellant on the date the alleged theft took place.

“When I saw him he was with this man Berry down on Ohio street in the city of Wichita Ealls, Tqx. Berry was pretty drunk, and I went to him and told him that he would have to get off the streets or I would have to throw him in jail, and Burrus, who was with him, told me that he would take care of him, and so I let him go and watched them, and they finally went into the Chile King restaurant. Some one told me that I had better watch Burrus, as he was fixing to take Berry’s money from him. I had on my uniform and knew that I could not watch him, as he would know who I was, and I saw Bob Lyons, another policeman, who was dressed in plain clothes, so I told him to watch them, and I went on about my business. It was only a short time until they came out of the restaurant and went into the Princess bar, which is about 15 feet from the restaurant.”

On cross-examination, lie said:

“I don’t think that the defendant was drinking. If he was, I could not tell it on him at all.”

Said policeman, Bob Lyons, testified that he was near the front of said restaurant on said occasion when Rawls told him to watch appellant and Berry; that he was dressed in plain clothes and did not have on any uniform; that appellant and Berry went into the restaurant, sat dowh on two stools, and he went in and sat near them; that he ordered a piece of pie and a glass of milk, and was listening to their conversation; that Burrus was trying to borrow $10 from Berry, but Berry told him he did not have any money to loan; that Berry was pretty drunk; that if Burrus was drinking he could not tell it on him at all; that they got up and went out of the restaurant, and he followed them into the Princess bar; that finally they walked kinder towards the back of the saloon, and he followed them; they were talking all the time; he could not understand what they were saying. He said:

“I got in behind the screen lattice which was in the back of the saloon, and I could see them, but they could not see me. I was watching them all the time, and finally Burrus reached in the hip pocket of Berry’s pants and got the long notebook out .and started to put it in his (Burrus’) pocket; but, just as he started to put it in his pocket, I grabbed him and took the pocketbook away from him. Pie said for me to be damn sure that there was $20 in there. I told him that I would take care of that and would also take care of him. There was $20 in there. I arrested both Burrus and Berry and took them to the city hall.” That he turned over said money to the chief of police.

On cross-examination be said be was sitting close to Burrus and Berry in tbe restaurant and could bear wbat they were talking about; that Burrus was trying to borrow $10 from Berry, and Berry would not let him have it; that be never beard Berry offer to let Burrus have any money.

J. B. Nail, tbe chief of police in Wichita Palls, testified that on May 18, J914, Bob Lyons turned over two $10 bills to him; that be put them in tbe bank, and they bad been there ever since. He produced tbe two bills and identified them. He said they were United States money and of tbe value of $20.

Appellant, for himself, testified that tbe policeman Bob Lyons arrested him in the King restaurant, and not in the Princess saloon ; that be was' a stranger in Wichita Palls and met Berry tbe evening of May 18, 1914; that be went into a saloon, where be first met Berry, bunting for a man whom be had met tbe day before to get him to clean a suit of clothes for him; that be did not find him in there and started out; that the bar was lined up with a bunch, and, just as he got to the head of the bar, Berry asked him to have a drink; he at first declined, but, upon Berry insisting, he did take a toddy with him; while he was drinking the most of the bunch left; that Berry told the barkeeper to let him have his money that he had left there; the barkeeper put two $10 bills out on the bar, and Berry started to put it in his long note or pocket book; the barkeeper told him that he would lose his money; that he (appellant) had a small pocketbook, and he took it out and gave it to Berry to put the money in and then put that in his (Berry’s) large notebook; that Berry asked him to stay with him and look after him, as he was pretty drunk, and he told him all right; that he tried to get him to go up in his room and go to bed, but Berry declined and wanted to take another drink; that they left the saloon, walked out on the streets, and sat down and talked awhile, when- the policeman Rawls saw them and came to them and told them as Rawls swore he did. He claimed that when they went to a saloon to take another drink Berry wanted to find a toilet and did go back to the toilet, but left his money with him while he was in the toilet; that he got the money back from him when he came back from the toilet; that they then went out of that saloon into the restaurant; that Berry wanted something to eat, and he did not, but upon Berry insisting he did order some fish, and they sat there and ate it. lie then claims that, after they got through eating, they went kinder back in the restaurant, when Berry began again about having lost his money; that he told him that he had not lost his money, but it was in the front of his shirt bosom, and he began to look for and couldn’t find it. “I reached my hand in there, and pulled the money nearly out of his shirt, and said, ‘Here is your money.’ Just about this time, some one reached over my shoulder and grabbed my hand that I had the pocketbook in, and before I got it out of the shirt front of the man Berry. I asked him what he meant, and told him to be damn sure that all of that money was in the pocketbook, and he said that was all right, he would take care of the pocketbook, and me also.” He at first swore that this occurred in the back end of the restaurant, and not in the saloon. He afterwards changed his testimony, and said that it was in the back end of the saloon and not in the restaurant. He swore that he did not take the pocketbook and money out of Berry’s hip pocket, nor did he start to do so. The state’s witness Lyon swore positively that he did take it out of Berry’s hip pocket, and did not attempt to take it out of Berry’s shirt in front. This was one of the controverted issues in the testimony. Appellant denied trying to borrow any money from Berry while they were eating in the restaurant, but said that Berry told him, if he wanted any money, he would let him have it, as he had plenty. He claimed that he was with Berry on that occasion three or four hours, and had ample opportunity to have 'taken his money if he had wanted to, and that he did not intend to take and keep the money, but simply, as Berry claimed that he had lost it, to show it to him. and show him that he had not lost it.

The record shows that appellant made but one objection to the court’s charge, and that is, he claimed that the charge failed to affirmatively tell the jury that they must believe beyond a reasonable doubt that he intended to appropriate the money to his own use and benefit before they could convict him. If the court, in his charge as submitted to appellant’s attorney, at first omitted this, it was clearly supplied in the charge in the record, in response to his objection.

There are in the record five special charges, shown to have been prepared by appellant’s attorneys. No reason whatever is given in either of them why they should have been given, either in the charges themselves, or in the motion for new trial, or in his bill complaining of the court’s refusal to give them. The record shows that he took one bill of exception thereabout to the effect that on the trial, after the evidence had been concluded, he presented “to the court his special requested instructions Nos. 1, 2, 3, 4, and 5, and requested the court to give them in charge to the jury, which said special instructions are as follows, to wit.” Then he simply copied each of said claimed five special charges. His bill concludes with this:

“Which request on the part of defendant the court refused and did not give said special instructions or any one of same in charge to the jury, to which action and ruling of the court the defendant then and there in open court excepted, and here now tenders this his bill of exception, and asks that the same be approved, signed, filed, and constitute a part of the record in this case, which is accordingly done” — which bill is signed by the judge.

The trial seems to have been concluded on August 7, 1914. This bill was not presented, allowed, and filed until August 29th.

From the record it is very questionable whether it is sufficiently shown', if at all, that these charges were presented to and requested of the court before the court read his charge to the jury. In other words, that they were presented as required by the recent act of the Legislature on the subject. Ross v. State, 170 S. W. 305. If they were presented within that time, as the bill is in the record, it is not,so presented as to show any reversible error in the court’s refusal to give the charges. Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878; Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884. However, conceding that said special charges were presented within the proper time and ‘ the questions raised in such a way as to require consideration thereof, we have examined each of them, and in our opinion they were fully and completely embraced in the court’s charge, so that in no event was it necessary to give any or either of them, and the court did not err in refusing to give either of them. However, as the case is to be reversed by my Associates, we think the court in another trial should submit affirmatively appellant’s special defense, to the effect that, if he did not take Berry’s money with the intention of appropriating it, but merely pulled it out of his shirt front to show to him he had not lost it, then to acquit him.

By the only other bill of exception, appellant complains that the court erred in refusing to let appellant swear that he and Berry were members of the Odd Fellows Lodge. In the opinion of this writer, said evidence was inadmissible. But even if it was admissible, the exclusion of it, under the circumstances of this case, should not require a reversal. But my Brethren are of opinion the evidence was admissible, and on their opinion the ease will be reversed and remanded, to which I dissent.

The verdict of the jury assessed three years in the penitentiary. The sentence of the court does not comply with our indeterminate sentence law. We call attention to this, so that, if necessary on another trial, the proper sentence, as required by the indeterminate sentence law, should be entered.

Reversed and remanded.  