
    BARTON v. STATE.
    (No. 5994.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1921.)
    1. Robbery &wkey;> 13 — Creditor’s assault on debtor for purpose of collecting debt not assault with intent to rob.
    If defendant made assault on prosecuting witness solely for the purpose of obtaining money which defendant in good faith believed prosecuting witness owed him, he was not guilty of assault with intent to rob, though he used force or threats, which, in the absence of the claim of right in good faith made, would have amounted to an assault with intent to rob.
    2. Robbery <&wkey;>26 — Whether defendant's claim that prosecuting witness owed him money was made in good faith held for jury.
    In prosecution for assault with intent to commit robbery, in which defendant claimed that he was merely attempting to enforce payment of debt owed him by prosecuting witness, the question of whether defendant’s claim was made in good faith or as a pretext to cover fraudulent intent held for the jury.
    3. Robbery <&wkey;3 — Animo furandi an element of robbery.
    The animo'furandi is an element of robbery ■as it is of theft, and both in theft and robbery the taking of goods upon a bona fide claim of right may negative any intent to steal.
    4. Robbery &wkey;>20 — Assault on one person insufficient for conviction under count charging assault on two persons jointly.
    Under a count charging an assault to rob two persons jointly, the defendant cannot be convicted if the assault was made on only one of such persons.
    5. Criminal law <&wkey;594(3) — Refusal of continuance held error.
    Where defendant immediately after indictment obtained and promptly forwarded to proper officers subpoenas for certain witnesses, and where defendant’s application for continuance stated the residence of such witnesses, and the returns of the officers did not indicate that such witnesses were not residents of the counties named, refusal of continuance was error, notwithstanding judge’s opinion that the witnesses were transient persons and there was no probability of securing their attendance.
    6. Criminal law <&wkey;9!7(2)— Refusal of continuance for absence of witnesses held ground for new trial.
    Where developments on the trial showed that witnesses named in application for-continuance were in a position to have known the facts attributed to them in the application, and where it did not appear on motion for new trial that the absent witnesses were unwilling to testify, the court should have granted a new trial.
    Appeal from District Court, Cottle County; J. H. Milam, Judge.
    Wood Barton was convicted of assault with intent to commit robbery, and he appeals.
    Reversed.
    A. J. Eires, of Childress, W. W. Ballew, of Corsicana, and Chas. E. Black, of Austin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

Conviction is for assault with intent to commit robbery.

The appellant was the manager of a large farm, and the owner of the farm had secured from southwest Texas a number of Mexicans to aid in picking his cotton, and in doing so the Mexicans had become indebted to him for the expenses of board and transportation. Some of these Mexicans left the appellant and went to work for Green. A controversy between Green and the appellant took place, which was adjusted, according to appellant’s theory, by him consenting to the use by Green of some of the Mexicans and the payment by Green to the owner of the farm under appellant’s control of sums of money that had been earned by the Mexicans while in the employ of Green, amounting, according to appellant’s theory, to $150. Subsequently, the appellant and Green met in the presence of Eldridge, and, according to the state’s theory, appellant demanded the payment and presented a pistol and threatened to kill Green if the payment was not made; and, on the statement by Green that he had no money, he was struck by the appellant with a pistol. Eldridge volunteered to give a check for the amount, and appellant, said, according to Eldridge’s testimony: “Make it for $150; it will just take that much to pay my fine.” “If you hold the check up, I will kill you.” The appellant at the time had his pistol drawn on Eldridge. This phase is controverted by the appellant, who claims that Eldridge voluntarily proposed to pay the $150 which appellant claimed that Green owed him, and that appellant acquiesced, but used no threat or force.

The count in the indictment upon which the conviction was had charged that appellant made an unlawful assault upon Green and Eldridge, and by violence to each of them made an attempt “to fraudulently take from the possession of the said A. A. Green and J. E. Eldridge, and each of them, the personal property.” The issues were submitted to the jury upon the theory that, if Green was indebted to the appellant or to his principal or had promised to pay them the amount earned by the Mexicans, and if there was an attempt to compel the payment by assault or by violence or putting in fear, a conviction should result. The correctness of this theory is combated by the appellant by an exception to the main charge and to the special charge given at the request of the state. The matter was presented to the trial court and is here brought forward to review.

In our opinion, if the appellant, in acting under a bona fide belief and claim that Green owed the sum of money and for the sole purpose of obtaining the money and applying it upon the debt due, made an assault or threats, he would not necessarily be guilty of robbery, although in making the attempt to obtain the payment he used force or threats which, in the absence of the claim of right in good faith made, would have amounted to an assault with an intent to rob; and whether his claim was made in good faith or as a pretext to cover fraudulent intent was a question for the jury.

The animo furandi is an element of robbery as it is of theft, and both in theft and robbery the taking of goods upon a bona fide claim of right may negative any intent to steal. Russell on Law of Crimes (7th Eng. Ed.) vol. 2, p. 1129; Bishop’s New Criminal Law, vol. 2, § 1162a. This principle has been applied to the forcible retaking of specific property in this and other jurisdictions. Smedly v. State, 30 Tex. 215; Barnes v. State, 9 Tex. App. 128; Wolf v. State, 14 Tex. App. 210; Higgins v. State, 19 S. W. 503; Temple v. State, 215 S. W. 965; Glenn v. State, 49 Tex. Cr. R. 349, 92 S. W. 806, 13 Ann. Cas. 774; Smith v. State, 81 S. W. 712; Boles v. State, 58 Ark. 35, 22 S. W. 887; State v. Wasson, 126 Iowa, 320, 101 N. W. 1125; Tripplett v. Commonwealth, 122 Ky. 35, 91 S. W. 281; People v. Hughes, 11 Utah, 100, 39 Pac. 492; State v. Dengel, 24 Wash. 49, 63 Pac. 1104; Brown y. State, 28 Ark. 126; People v. Vice, 21 Cal. 344; Driscoll v. People, 47 Mich. 413, 11 N. W. 221; Young v. State, 34 Tex. Cr. R. 290, 30 S. W. 238.

The judicial decisions are practically uniform that the same principle applies to the forcible collection of a debt. In Russell oh Crimes, p. 1129, supra, it is said:

“A creditor who assaults Ms debtor and compels kirn to pay Ms debt cannot be convicted of robbery.”

In the English case of Reg. v. Hemmings, 4 F. & F. 50, the prisoner was indicted for robbery, and it was shown that the check or money forcibly obtained was owing to the prisoner by the prosecutor, and that the prisoner’s motive was to collect his debt. He was held not guilty of robbery. Many decisions harmonizing with this view are found. State v. Hollyway, 41 Iowa, 200, 20 Am. Rep. 586; State v. Brown, 104 Mo. 365, 16 S. W. 406; Ohio v. Carmans, Tappan (Ohio) 65; Gables v. State, 68 S. W. 288; Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Rep. 242; McDaniel v. State, 8 Smedes & M. (Miss.) 401, 47 Am. Dec. 93. There are in the case of Fannin v. State, 51 Tex. Cr. R. 45, 100 S. W. 916, 10 L. R. A. (N. S.) 745, 123 Am. St. Rep. 874, expressions varying from the views stated, but they are out of harmony with the weight of authority, both English and American. From what we have said it follows that upon another trial the question of appellant’s intent should be determined on appropriate instructions, making the jury know that, if appellant acted alone upon the intent to collect the debt, which he in good faith believed to be owing, his offense would not be an assault to commit robbery.

In view of certain special charges that were given, we would not feel justified in reversing this case upon the complaint made of the manner in which the sixth count in the indictment was submitted to the jury. That count manifests the intention upon the part of the pleader to charge a single assault upon Green and Eldridge jointly. This interpretation seems to be emphasized by the fact that in the fourth and fifth counts an assault to rob Green and Eldridge separately is charged, and upon the trial was submitted to the jury. The sixth count should, in our opinion, be treated as charging a single assault upon both Green and Eldridge; that is to say, that part which submitted that count which authorized conviction, if the assault was made upon either of them, should be eliminated. Upon the subject, see Grantham v. State, 59 Tex. Cr. R. 556, 129 S. W. 839; Franklin v. State, 53 Tex. Cr. R. 547, 110 S. W. 909; Hernandez v. State, 43 Tex. Cr. R. 80, 63 S. W. 320.

The date set for the trial was less than a week after the filing of the indictment. Immediately after he was indicted, the appellant obtained and promptly forwarded to the proper officers subpoenas for witnesses in Hidalgo and other counties in the southwestern portion of the state and great distances from the place of the trial. Because of their absence on the day the case was called, and because of the statement of the sheriff in' making the return that some were not served for lack of time and that some were in an adjoining county, the case was postponed for 15 days. New process was at once issued and forwarded, and when the case was again called for trial the witnesses were not present, but there was received the day before a letter from the sheriff stating that the witnesses were in Harris county,' and subpoenas at the instance of appellant were immediately issued thereto. The materiality of the testimony of these witnesses was obvious, and not controverted. They were to support the theory of the appellant that, instead of acting as aggressor, he was acting in self-defense upon threats of Green to take his life and by hostile demonstration at the time. These issues were submitted to the jury, but mainly upon the appellant’s testimony. The absent witnesses would have supported him. Prom the qualification of the trial judge it appears that the witnesses were Mexicans who had been brought from'Southwest Texas to pick cotton. This also appears from the record, but the application for continuance states the residence of the witnesses, naming the counties and localities in Southwest Texas, and the returns of the officers did not indicate that the witnesses were not residents of the counties named, but, so far as these returns and letters from the sheriff bear upon the subject, they indicate the contrary. The opinion stated in the judge’s qualification that they were transient persons and that there was no probability of securing their attendance, we think, did not justify his action in refusing a continuance. Richardson v. State, 28 Tex. App. 218, 12 S. W. 870; Leonard v. State, 53 Tex. Cr. R. 190, 109 S. W. 149; Pearson v. State, 56 Tex. Cr. R. 607, 120 S. W. 1004.

The developments upon the trial going to show that the witnesses named in the application for continuance were in a position to have known the facts attributed to them in the application, and the absence of anything connected with the motion for new trial, casting doubt upon their willingness to give the testimony, emphasizes the error in overruling the application, and, in our judgment, rendered it incumbent upon the court to grant a new trial. Mason v. State, 57 Tex. Cr. R. 319, 122 S. W. 871; Branch’s Ann. Tex. Penal Code, § 319. Other matters referred to in the voluminous records will doubtless not occur in another trial.

The errors pointed out require a reversal of the judgment; and it is so ordered. 
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