
    ACOSTA et al. v. STATE.
    (No. 3762.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <§=^>1131 — Appeal—Dismissal.
    Where, since conviction and pending appeal, accused escaped from custody, the appeal will be dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. <§^>1131.]
    2. Robbery @=>24r-PR0SECUTi0N — Evidence —Sufficiency.
    Where the indictment charged that defendants made an unlawful assault on the complaining witness and by violence put him in fear ot life and bodily injury and in that way robbed him, a conviction where the death penalty was not assessed is warranted on proof that they terrorized the witness with a razor and despoiled him, though a razor be not a deadly weapon.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. <§=^24.]
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Jesus Acosta and Samual Rosas were convicted of robbery, and they appeal.
    Affirmed as to Jesus Acosta, and appeal of Samual Rosas dismissed.
    
      J. Marvin Jones, of Amarillo, for appellants. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellants were convicted under an indictment charging them with robbery, and their punishment assessed at five years’ confinement in the penitentiary.

Since said conviction, and while this case was pending in this court on appeal, it is made to appear by affidavits on file that appellant Samual Rosas has escaped from custody. The state’s motion to dismiss the appeal as to said appellant is therefore sustained, and this cause dismissed as to said appellant Samual Rosas.

There are no bills of exception in the record. The special charges requested by appellant were all given; consequently, if the evidence sustains the verdict, the judgment as to Jesus Acosta must be affirmed. Margarita Estrada testified that the two appellants agreed to show him the way to a barber shop; that they carried him into a room, drew a razor on him, and told him to hold up his hands, and when he did so they went through his pockets and took his money. This made a case, if the jury believed the testimony; and evidently they did believe it. Appellant contends that a razor is not per se a deadly weapon. We are inclined to believe that all mankind know that death can be inflicted by a razor in the hands of a grown man. At any rate, the death penalty was not assessed, but only five years adjudged. If the razor should be held not to be a deadly weapon, as the indictment alleged that appellants made an unlawful assault on Margarita Estrada and by violence did put the said Estrada in fear of life and bodily injury, the evidence supports the verdict.

The judgment is affirmed as to Jesus Acosta, and the appeal is dismissed as to Samual Rosas. 
      <§=»ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     