
    CARREON v. STATE.
    (No. 6576.)
    (Court of Criminal Appeals of Texas.
    Jan. 18, 1922.)
    1. Indictment and information &wkey;>l25(39)— Indictment held not defective as charging both robbery by violence and robbery by use of firearms.
    An indictment charging robbery by assault and violence and by the use of a pistol held not defective as charging in one count both robbery and robbery by the use of firearms.
    2. Crimina! law t&wkey;982 — Suspended sentence improper on conviction of robbery by use of
    ' firearms.
    Vernon’s Ann. Code Cr. Proc. 1916, art. 865b, prohibiting a suspended sentence in robbery prosecutions, includes a conviction of robbery by the use of firearms, in view of the sole definition of robbery provided by Vernon’s Ann. Pen. Code 1916, art. 1327.
    3. Robbery &wkey;>20 — No variance between indictment and proof as to person from whom money was taken.
    In a robbery prosecution, where the money was averred to have been taken from one D., and the evidence showed it was taken from one N., there was no variance, it appearing that D. was the president of a corporation and N. its secretary, and that the money taken was in the joint possession of both, and was being carried by them from the .bank to pay off employes.
    4.Robbery @=327(1) — Failure to present charge embodying defense erroneous.
    In a prosecution of one of several code-fendants for robbery, who claimed that he did not know of the intention of his codefendants, and that he was forced by them to aid in the robbery, it was error to refuse to submit a charge presenting such defense.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Tomas Carreon was convicted of robbery, and he appeals.
    
    Reversed and remanded.
    R. G* Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for robbery with punishment assessed at 15 years in the penitentiary.

The indictment charges robbery of B. E. Darbyshire by an assault and violence and by the use of a pistol. Motion to quash was presented on the ground that the indictment charged in one count both robbery and robbery by the use of firearms. The.contention is without merit. Bell v. State, 77 Tex. Cr. R. 146, 177 S. W. 966; Green v. State, 66 Tex. Cr. R. 446, 147 S. W. 593.

Complaint is made (bill of exception No. 2) that the court declined to permit the filing of an application for suspended sentence on the ground that, while article 865b, Vernon’s C. C. P., does not permit a suspended sentence in robbery, there is no such inhibition where the robbery is with firearms. There is only one definition of robbery in our Code (article 1327, Vernon’s P. C.). The penalty only is enlarged where a firearm is used. The offense is still robbery. No error was committed in refusing to permit the plea.

The question is raised in various ways that there is a variance between the proof and the averments in the indictment; the contention being that the evidence shows the money to have been taken from'E. E. Nold, whereas the indictment alleges it was taken from B. E. Darbyshire. Darbyshire was the president and manager of the Darbyshire-Harvie Iron and Machine Company. Nold was the secretary of the same concern. On the day of the robbery they had gone together to the bank and gotten the money to pay off the employés. The money was in a sack and the sack was placed on the seat between them in their car. They drove to the sidewalk immediately in front of their place of business. As they stepped .out of the car Nold picked up the “sack and the holdup instantly occurred. Nold threw the sack on the sidewalk behind him, and it was secured by one of the robbers. Both Darbyshire and Nold were assaulted and covered with pistols by two men. Darbyshire testified that as manager he had the care and control of the money as they were taking it from the bank to their place of business. The most that can be said is that it may have been in their joint possession. The facts do not show such exclusive care, control, and management in Nold as would render fatal an allegation of possession in Darbyshire. The fact that Nold, and not Darbyshire, picked up the sack to carry it across the sidewalk into their place of business would not, we think, make it inappropriate to still charge possession in Darbyshire. They were both present and acting together in conveying the money. Hasley v. State, 87 Tex. Cr. R. 444, 222 S. W. 579; Guyon v. State, 89 Tex. Cr. R. 287, 230 S. W. 408.

Francisco Ortiz, Guadalupe Torres, and appellant were jointly indicted for robbery. Appellant only was on trial. The state introduced the wife of appellant’s codefendant Torres, and she testified over appellant’s objection. The bill of exception leaves it uncertain as to the condition of the prosecution against Torres at the time of the trial in the instant case. The bill recites that the case against Torres had not been finally disposed of, and that Torres himself was present at court, but was not called by the state to testify. We do not discuss this bill of exception at length, because the case must be reversed upon another ground, and, whatever may have been the. condition of the prosecution with reference to Torres, it would likely not be the same upon another trial; however, upon the question suggested by the bill, we refer to the following cases: Bluman v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027, 26 8. W. 75; Dungan v. State, 39 Tex. Cr. R. 115, 45 S. W. 19; Dill v. State, 1 Tex. App. 278; and Bowmer v. State, 55 Tex. Cr. R. 416, 116 S. W. 798.

Francisco Ortiz, one of appellant’s code-fendants, was used as a witness by the state. He testified that the robbery in question was the result of an agreement entered into by appellant, Torres, and himself. He makes out' a complete case against appellant of participation in the robbery. This is also supported by other evidence in the case. Appellant testified that he was a service car driver, and that Ortiz came to him on the morning of the robbery and hired his (appellant’s) car, with appellant to drive the same; that he had no knowledge of any intent on the part of Ortiz and Torres to perpetrate a robbery, but that he drove to the place where the robbery was committed at the direction of Ortiz and was sitting in his car reading a paper at the time the robbery was committed, and had no knowledge thereof; that Ortiz and Torres, after the robbery, re-entered the car and compelled him at the point of a pistol to drive the car away and aid them in the attempt to escape. In this state of the record appellant requested the following special charge, which the court refused to give:

“If you should believe and find from the evidence that Ortiz and Torres employed the defendant herein for the purpose of driving around the city, and that while so driving they, the said Ortiz and Torres, committed the offense of robbery by the use of firearms, and that at said time and place of the alleged robbery the defendant herein was not cognizant of their said unlawful act, if any, and that thereafter he assisted the said defendants in an attempt to escape under coercion by the said Ortiz and Torres, then and in that event, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘Not guilty.’ ”

If appellant had no knowledge of the purpose of said codefendants to perpetrate a robbery, and was not cognizant that one was being committed at the time, he would not be guilty of any offense. After the robbery was committed, even though he may have then-learned thereof, if he was compelled by his codefendants to drive the car away in their effort to escape, he would not be guilty of any offense. The charge requested pertinently submitted to the jury in an affirmative-way appellant’s defense. We fail to find in-the charge given by the court any presentation of appellant’s defensive theory whatever. We quote from the case of Leon Duncan v. State, 236 S. W. 468, decided January 4, 1922:

“Perhaps there is no better settled proposition in our practice than that, where there is a defensive theory, it should be submitted in the charge in an affirmative manner, and this • is now imperative in a proper case, where a special charge affirmatively submitting such defensive theory is requested, unless such affirmative presentation substantially appeared in the main charge. Martin v. State, 57 Texas Crim. Rep. 264; Walker v. State, 63 Texas Crim. Rep. 499; Porter v. State, 48 Texas Crim. Rep. 301; article 737, Vernon’s C. C. P.”

The court may have thought little reliance should be placed on appellant’s testimony, and the jury may have given as little credence to it, but the issue was fairly raised, and under the well-settled law in this state appellant was entitled to his affirmative presentation of it.

For the failure to give the requested charge, the judgment of the trial court must be reversed, and the cause remanded. 
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