
    TEMPLE v. STATE.
    (No. 5538.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1919.)
    1. Robbery <&wkey;4 — Regaining possession op MONEY LOST IN GAMBLING.
    Though one who plays at a gambling game, and loses money under the rules of the game, and surrenders it to his adversary, may be guilty of robbery, under Pen. Code 1911, art. 1327, when he regains the money by force, yet if he was induced to part with his money through deceit and fraud, he would not be guilty, as one obtaining personal .property by false pretenses is guilty of theft, under article 1332.
    2. Robbery &wkey;>27(l) — Failure to submit - DEPEN SB ERROR.
    Failure to instruct as to defense, if defendant was induced to part with his money and place it under the control of his adversary in a gambling game through deceit and fraud, he would 'not be guilty of robbery in regaining possession, was error.
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Abel Temple was convicted of robbery, and" he appeals.
    Reversed.
    Matt Cramer, of Bay City, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appealed from a judgment condemning him to the penitentiary for five years for the offense of robbery.

The appellant and Walter Dorsey were gambling, and the appellant lost some money, and it is the theory of the state that the appellant regained the money, and in doing so made an assault upon Dorsey under circumstances rendering him guilty of the offense, charged. The parties were sitting on the floor, and the prosecuting witness stated in his evidence that he had the money which he had won from appellant and some of his own money “right between my legs, up against the crotch”; that, while he was preparing to pick up the money, the appellant demanded it, and picked it up, and backed out of the door, exhibiting a pistol, by pulling it part of the way out of his hip pocket. Appellant and other witnesses present denied the exhibition of the pistol, or its possession by the appellant. Appellant’s theory was that Dorsey, who was dealing, represented to him that there were 40 cards in the deck, and that he believed that to be true, when, as a matter of fact, it whs false, Dorsey having but 36 cards in the deck. The evidence was undisputed that to play the game 40 cards were necessary, and appellant contended that by reason of the fraud he was cheated out of his money. He also denied any assault, and claimed that, when he discovered fraud, he took back his own money, which was lying on the floor between the legs of Dorsey; that he got no money but his own, and not quite all of that.

The appellant by a special charge sought to have the jury instructed upon his theory of the case, and presents here the view that, if the appellant was induced to part with his money and place it under the control of Dorsey through his deception and fraud, he would not be guilty of the. offense of robbery in regaining possession of it, though in doing so he used force: We believe this to be sohnd. This is a different proposition from that asserted in Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368, and others, holding that, where one playing at a gambling game loses money under the rules of the game, and surrenders it to his adversary, he may be guilty of robbery when he regains it by force. Under the circumstances named in Blain’s Case and Carroll’s Case, 42 Tex. Cr. R. 30, 57 S. W. 99, the 'injured pqrty, having won the money according to the rules of the game and been put in possession of it, had under the decisions such title to it as brought him within the terms of the robbery statute. Article 1327. In the instant case, if appellant’s theory he correct, he was induced to part with his money, not perforce of any game played according to its rules, but by reason of the false and fraudulent representations of Dorsey.

Under one of our statutes on theft (article 1332, Penal Code) one obtaining personal property by any false pretext with intent to appropriate it to his own use may be convicted of theft. Among the devices which have been held to come within this statute is a card game used to fraudulently obtain possession of money. Porter v. State, 23 Tex. App. 295, 4 S. W. 889; Conner v. State, 76 S. W. 924; Randle v. State, 70 S. W. 958. Under these decisions, if Dorsey induced the appellant to part with the possession of .his money by a false pretext within the meaning of the law, he acquired no right to the money, and the appellant lost no right to its control. 20 Cyc. p. 941; Bass v. Peevey, 23 Tex. 296; Rector v. Hudson, 20 Tex. 234. If Dorsey acquired appellant’s money by theft, the identical money being in view, the appellant would not be guilty of robbery in repossessing himself of his own. It is well settled that one cannot be guilty of robbery by taking his own specific property from the possession of another, although the taking may be accomplished under such circumstances as would amount to robbery if the property belonged to the person from whom it was taken. Glenn v. State, 49 Tex. Cr. R. 349, 92 S. W. 806, 13 Ann. Cas. 774; Barnes v. State, 9 Tex. App. 128; Higgins v. State, 19 S. W. 503; Smedly v. State, 30 Tex. 214, 13 Ann. Cas. 775, note.

We think the charge should have been so amended that it would inform the jury in appropriate terms as to the appellant’s rights in the event they believed from the evidence that his money was obtained from him by a false pretext, ar^d that the failure to so instruct them constitutes error requiring a reversal of the judgment. 
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