
    JARROTT v. STATE.
    (No. 7836.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.)
    I. Criminal law &wkey;>595(2) — Defendant held entitled ‘to continuance to procure testimony that alleged theft was merely joke.
    In a prosecution for theft from the person, defendant held entitled to a continuance to procure a witness who would testify that the money was taken as a joke, with intent to return it.
    2» Larceny <&wkey;!9 — Robbery <&wkey;9- — Taking property from person by force is “robbery,” not “theft from person.”
    Taking property from the person by force and violence is “robbery,” not “theft from the person.”
    • [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Robbery; Theft from the Person.]
    3.Larceny &wkey;>!9 — Robbery &wkey;>9 — Acts held to constitute “theft from person,” not robbery.
    Snatching money from another’s hand so suddenly as not to allow time for resistance is not robbery, but theft from the person.
    4. Larceny <&wkey;75(l) — Issue as to taking by violence should be submitted where evidence raises it.
    If the evidence in a prosecution for theft from the person fairly raises the issue whether the money was taken by violence after resistance, such issue should be submitted to the jury under appropriate instructions, as defendant cannot be convicted of robbery under an indictment charging theft from the person.
    5. Criminal law &wkey;>722!/2 — 'Prosecutor’s argument held reversible error as urging consideration of improper evidence on question of guilt.
    In a prosecution for theft from the person, the county attorney’s statement in argument that, “If you will show me a man who will _ sell whisky for profit, I will show you a man who will do anything,” 'held reversible error, as urging consideration of evidence properly admitted solely on the issue of defendant’s credibility.
    Appeal from District Court, Montague County; C. R. Pearman, Judge.
    Hugh Jarrott was convicted of theft from the person, and. he appeals.
    Reversed and remanded.
    Chancellor & Bryan, of Bowie, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, fqr the State.
   HAWKINS, J.

Conviction is for theft from the person, punishment being assessed at two years in the penitentiary.

The indictment charged that appellant took twenty-five dollars from the possession of Lester Kline so suddenly as’not to allow time to make resistance. See articles 1350 and 1351, P. C. The transaction out of which this prosecution grew occurred in front of a café which was being operated by appellant. Several parties were on the sidewalk in front of the café, among them being an officer by the name of Black. It was sufficiently light for parties to see without .difficulty what was transpiring. Kline testified that a party handed him $25 in repayment of a loan; that appellant snatched the money from his hand before he had time to resist; that appellant went into his place of business, and was followed by prosecuting witness, who engaged in a scuffle with appellant inside the café in an endeavor to recover his money, but that appellant handed it to a third party, who passed out of the back door. Officer Black testified, in substance, that he saw appellant and Kline scuffling on the sidewalk, and “it looked like appellant was trying to twist something out of Kline’s hand;” that this occurred on the sidewalk in front of appellant’s place of business, and not inside the café. Appellant testified that several parties were standing in front of his place of business, and that he noticed the money in Kline’s hand, and that he took the $25 in question and passed it to Levi Stallsworth; that the money was taken not with the purpose of depriving Kline of it, but that it was done as a joke, and that he (appellant) expected Stallsworth to return the money to Kline.

Appellant asked for a continuance for the witness Stallsworth. It appears that Stallsworth had been subpoenaed. It is alleged that if present at the trial he would testify that he knew at the time the money was taken it was intended as a joke, and was never intended for any other purpose and that it was the intention to return the money to Kline.' It appears from the evidence that Kline did in fact receive from Black, the officer, the $25 taken from him, but it is not shown from whom Black secured this money. We believe the learned trial judge was in error in refusing the continuance. If an offense was committed it was under rather peculiar circumstances. Several parties were immediately in front of the café at the time the transaction occurred, among them an officer, and it is singular that appellant would undertake the commission of an offense of the character charged under these circumstances, and we believe- he was entitled to have Stallsworth present to support his statement that the taking of the money was intended as a joke.

The case was submitted to the jury upon that phase of the law embracing theft from the person committed so suddenly as not to allow time for resistance. Appellant found no complaint at the charge as submitted, but contended at the time of trial, and now contends here, that the evidence of Officer Black raised the issue that, if an offense was committed at all, it was- that of robbery, and not theft from the person; that the money was taken as a result of violence, and over the resistance of Kline, and not so suddenly as to prevent resistance. A special charge presenting this theory to the jury was requested and refused. The taking of property from the person by force and violence is robbery, and not theft from the person. Gallagher v. State, 34 Tex. Cr. R. 306, 30 S. W. 557. Snatching money from another’s hand so suddenly as not to allow time for resistance does not constitute robbery, but would be theft from the person. Johnson v. State, 35 Tex. Cr. R. 140, 32 S. W. 537.

It will be observed from the evidence of Kline heretofore set out that he makes out a complete ease of theft from the person, while the evidence of Officer Black would indicate that the scuffle he saw the parties indulge in occurred on the sidewalk, at which time appellant apparently was trying to violently take something out of Kline’s hand. The evidence leaves no question but that at some time during the proceedings a scuffle between appellant and •Kline took place. Black and Kline may refer to the same scuffle, regardless of the fact that one claimed it to have taken place inside the café and the other on the sidewalk. This matter does not seem to have been very clearly developed. We suggest that, in the event of a retrial, if the evidence fairly raises the issue that the money was taken as a result of violence, and after resistance on the part of Kline it should be submitted to the jury under appropriate instructions, as he could not be convicted of robbery under an indictment charging theft from the person.

While appellant was testifying in his own behalf the state elicited the fact that he had been convicted for the illegal sale of whisky, and was then under indictment for other charges of like character. This evidence was admitted solely upon the issue of appellant’s credibility as a witness, and was properly limited to that purpose by the court’s charge. During argument the county attorney made the following statement:

“If you will show me a man who will sell whisky for profit, I will show you a man who will do anything.”

Objection was made to this argument because the county attorney was urging the jury to appropriate the former convictions and pending charges as circumstances against appellant to determine his guilt of the charge for which he was then being tried. We believe this argument ought not to have been indulged in. Prosecuting officers in their zeal should not so frame their argument as to induce a jury to appropriate for general purposes testimony which can be properly introduced only for a limited purpose. The effect of 'the argument was to tell the jury that one who had been selling whisky for profit was likely to be guilty of the offense of theft from the person.

For the reasons given, the judgment must be reversed, and the cause remanded. 
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