
    SPARKS v. STATE.
    (No. 3582.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.)
    1. Robbery t&wkey;20 — Indictment — Issues — “Lawful Money of the United States.”
    A charge that one robbed another of “lawful money of the United States” is sustained by proof that the accused took “dollars” in money.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 27; Dec. Dig. &wkey;>20.]
    2. Criminal Law <&wkey;566 — Evidence—Sufficiency — Identity of Person Robbed.
    Evidence held, insufficient to establish the identity of the person robbed with the person named in the indictment as having been robbed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1273-1275; Dec. Dig. &wkey; 566.]
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Jim Sparks was convicted of robbery, and appeals.
    Reversed and remanded.
    Fletcher S. Jones, of Wichita Falls, for appellant. O. C. McDonald, Asst Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted in this case, charged with robbing “John Noles of $7, lawful money of the United States of America.” When convicted, he prosecuted an appeal to this court, alleging that' the evidence is insufficient to sustain the conviction, and the court erred in not giving the special charges requested so instructing the jury.

J. C. McDaniels testified that he saw appellant and Charles Eshelman feeling through an old man’s clothes who had just gone out of his saloon; that the old man was begging them to leave him 60 cents to get his breakfast with; that one of them said, “Be quiet or I will knock your head offthat he (witness) ran out there, when appellant and Esh-elman ran, when he called the police; that the old man said they got his money — he said they got about $6.

The first contention is that, as the indictment charges that the money “was lawful money of the United States of America,” this was descriptive of the money alleged to have been taken, and therefore it was necessary to prove that the money taken was lawful money of the United States of America, and as no witness so testified the proof would not sustain a conviction. We are aware that we have some cases so holding, while we have cases holding otherwise. We do not deem it necessary to cite either of the line of cases, but will say that in our opinion Judge Davidson correctly laid down the true rule in Menear v. State, 30 Tex. App. 475, 17 S. W. 1082. In that case the indictment alleged in a case of robbery that the property taken was “10 cents in the money of the United States of America.” The only evidence was the accused had taken 10 cents in silver, and it was held to be sufficient to sustain the allegation in the indictment. The United States, so far as we are aware, is the only country that now divides its money into and denominates its money dollars and cents. In England we have pounds, shillings, and pence; in Germany, marks and pfenige; in France, francs and centimes; in Spain, pesetas and céntimo; in Mexico, peso and centavos. So, when one swears another : took from him $6 in money, it necessarily conveys the idea that he had taken money of the United States of America. If the evidence suggested that any other circulating medium used as money was taken, then, of course, it would he incumbent on the state to prove that it was “lawful money of the United States of America.” No other construction could he placed upon such language, and we think that line of cases is correct which holds that when the allegation is that one took money, lawful money of the United States of America, and the proof is that the person took so many dollars in money, the evidence sufficiently proves the allegation. If it was not money of the United States, the allegation would be that he took so many pounds, marks, pesetas, pesos, or francs, current and passing as money. When we say one took from another $6 in money in this country, it means and conveys the idea, and only the idea, that he took money of the United States of America. Judge Henderson, in the case of Berry v. State, 46 Tex. Or. R. 420, 80 S. W. 630, discusses this question at length and digests the various decisions. In Ferrell v. State, 68 Tex. Or. R. 495, 152 S. W. 901, after discussing the question at length, this court held that such proof was sufficient to sustain such allegation, and expressly stated: “All cases in conflict herewith are hereby overruled.” We see no reason to change our opinion. It is true that there was in circulation in the seventeenth and eighteenth centuries in Spanish America what was termed the Spanish “milled dollar,” or “pillar dollar,” so called from the figure of the “Pillars of Hercules” thereon, and in our first coinage laws, after our independence, our dollar was made of the same weight and value. But it has been many years since the “pillar dollar” was in circulation to any considerable extent in the United States, and it was not called a dollar in Spain, but was called pesetas or peso. No such dollar is now in circulation in this country.

Another question is presented, however, as to the sufficiency of the evidence. The indictment alleged that the money was taken from the possession of John Noles, and it was, therefore, necessary to prove that it was taken from the person named. Mr. McDaniels testified that he saw appellant and Charles Eshelman going through the clothes of an old man, and that the old man said they got $6 from him; that he did not know the name of the old man, and did not know that he was named John Noles; that he did not know where the old man is now. It is thus seen that this witness would not and could not identify the man whom he says was robbed as the man named John Noles. He swears positively he did not know his name, and did not now know where he was at the time of the trial. The only other witness introduced was Sheriff Hawkins, who testified:

“I know that John Noles is dead. He died about two weeks from the alleged robbery from natural causes.”

One might infer from this that the man who died was the man who was robbed, but it would simply be an inference. John Noles may have died two weeks after the alleged robbery, but there should have been some proof offered that he was the old man Mc-Daniels says he saw defendant and another rob. On another trial it should be shown that John Noles, the dead man, was the old man whom McDaniels saw robbed, if that is a fact. It should be shown in some way that the man robbed was named John Noles and, as there is no evidence in this record to prove that fact, the case must be reversed.

The judgment is reversed, and the cause remanded.

DAVIDSON, J. I think the case ought to be reversed on both grounds. 
      (gs^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     