
    Ex parte Andrew Lee DIES.
    No. 27338.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1954.
    No attorney on appeal for appellant.
    Wesley Dice, State’s Atty., Austin, Tor the State.
   WOODLEY, judge.

This is an original application for habeas corpus, relator being' an inmate of • the penitentiary. ■>

He attacks as void the judgment >and sentence in Cause .No., 17,284 in the Criminal District Court of Jefferson County, Texas, dated August 26, 1949. .

Relator was indicted in said cause for the offense of robbery and was assessed & term of two.years in.the penitentiary, the. sentence to begin at the expiration of the sentence in Cause No. 16,940 on the docket of the same court. The sentence in Cause No. 16,940 appears to. have-' been served and relator has now begun to serve the two-year sentence here under attack.

We have been furnished with copy of the judgment in said Cause No. 17,284 entered nunc pro tunc, which reveals that at the request of the District Attorney, the Court Ordered the offense of robbery charged in the indictment reduced to the offense of theft from the person, and that relator pleaded guilty and was convicted under said indictment for the latter offense. This accounts for the punishment of two years being assessed, whereas the minimum punishment for the Offense charged in the indictment is five years.

Appellant’s contention that the court was without jurisdiction to render such judgment under the indictment in Cause ■ No. 17,284 must be sustained.

In Van Arsdale v. State, 149 Tex.Cr.R. 639, 198 S.W.2d 270, we held that theft from the person is not an, included offense in the crime of robbery and that the trial court was without jurisdiction to try the defendant for the offense of theft from the person under an indictment which alleged that he committed robbery.

The Van Arsdale case has been cited with approval in later. cases, including Tomlin v. State, 155 Tex.Cr.R. 207, 233 S.W.2d 303.

Insofar as he is confined in the penitentiary under such conviction in Cause No. 17,284 in Criminal District Court of Jefferson County, relator is entitled to be released from the penitentiary but will be delivered to the Sheriff of Jefferson County, Texas, to await the further order of the Criminal District Court of said County in said Cause' No. 17,284, which cause will stand for trial for the offense of robbery as though no order had been made attempting to change, the offense to theft from the person.

The writ is granted and it is so ordered.  