
    CLARK v. STATE.
    (No. 5675.)
    (Court of Criminal Appeals of Texas.
    March 17, 1920.
    On Motion for Rehearing, April 14, 1920.)
    1. Robbery <@=o5 — Acquisition of property by trick is not “robbery.”
    Under Pen. Code 1911, art. 1327, defining “robbery” as taking property from the person or possession of another by assault or violence or putting in fear, the acquisition of the property without force by a trick is not robbery.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Robbery.]
    2. Robbery @=34 — Demonstrator of automobile permitting prospective purchaser to drive has possession.
    Where an automobile salesman demonstrating a car for persons who stated a desire to buy permitted one of those persons to drive the car, but remained in it himself, he did not thereby part with possession of the car, so that taking the car from him thereafter by force was robbery.
    3. Holidays <@=5 — Does not vitiate return on issuance of copy of venire.
    The issuance of a copy of the sheriff’s return on a special venire on July 4th could not vitiate the return.
    4. Jury <@=3116— Failure of venireman to report not ground for quashing.
    The failure of some of the veniremen to respond is not a ground for quashing the writ of venire.
    5. Criminal law <3=^438 — Photographs of locality of crime admissible.
    In a prosecution for robbery, the introduction in evidence of photographs of the locality of the crime is not error.
    On Motion for Rehearing.
    6. Robbery <@=34 — “Possession” held to have been retained notwithstanding trick until force was used.
    Where the demonstrator of an automobile was induced by trick to leave it and enter a house, where he was threatened with a pistol and bound, and the prospective purchasers then took the car, the demonstrator retained “possession” within the meaning of Pen. Code 1911, art. 1327, uefining robbery, until the others took actual possession of it, so that they obtained possession by force, and not by trick.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Possession.]
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Howard Clark was convicted of robbery, and he appeals.
    Affirmed.
    G. Q. Youngblood, of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The charge was robbery, and punishment fixed at confinement in the penitentiary for 30 years.

The injured party was W. J. Thompson. Thompson was an employé of the Cameron Auto Company, which was in the business of selling automobiles, and was the owner of a car which was acquired by appellant and his companion. Appellant and Smith claimed that they desired to buy an automobile, and Thompson on the day preceding the offense demonstrated the car, and on the next day the appellant and his companion called for another demonstration. Thompson told them that he would be otherwise engaged, and that Mr. Cameron would accompany them while appellant drove the car. This did not meet with the approval of appellant, and at his instance Thompson accompanied them, Clark, the appellant, driving the car. Thompson suggested that they go to the Edgewood addition of the city' of Dallas. Smith said: “We know where we want to go.” Thompson assented, and the car was driven in another direction. During the trip Clark exchanged seats with Smith, and while he was driving he claimed to have a cramp in his stomach, and stopping the car went to an old house about 100 yards from the public road, appellant and Thompson remaining in the car, Clark on the front, and Thompson on the back seat. After Smith had been absent a few minutes, Clark went to the house, stating that he would see what was the matter with Smith. A few moments later Clark called to Thompson, stating, “I want to show srou something funny.” Thompson walked from the car to the house, and as he stepped on the porch Clark fell in behind him, and when he entered the door Smith presented a pistol and ordered him to throw up his hands. They, acting together, then bound and gagged him, and tied him to a joist where the floor was turned up. While this was in progress, Smith continued to exhibit the pistol, and the appellant made a statement to Thompson to the effect that they were going to take the car. This they did, leaving Thompson in the condition stated.

The sufficiency of these facts to constitute robbery is challenged on the theory that the property was acquired by artifice and fraud, and not by force, and that the offense was not robbery, but theft. In support of this proposition the appellant has filed an instructive brief citing many authorities, most of which we have examined. We aré fully in accord with appellant’s premise that, if the possession of the property was acquired without force, the offense would not be robbery. “The violence or intimidation in robbery must precede or be contemporaneous with the taking of the property.” Cyc. vol. 34, p. 1799. From the conclusion, however, that the possession was not acquired by force or violence we must dissent. Our statute on the subject is in substance that, if one by assault, or violence, or putting in fear of life or bodily injury, shall fraudulently take .from the person or possession of another any property with intent to appropriate it to his own use, etc., to which is added that when a firearm or deadly weapon is used, the penalty is increased. See Penal Code, art. 1327. Many of the cases to which we are referred by the appellant are decisions in states in which the statute defining robbery confines the taking to the person. Our statute extends to the possession as well as the person. The distinction is adverted to in Smith v. State, 37 Tex. Cr. R. 342, 39 S. W. 933.

The view that the appellant and his companion were in possession of the car while they were driving it, we think, is not tenable. It was under the care, control, and management of Thompson, representing Cameron Company, the owner. The appellant was not, in our judgment, even a custodian of the car. Its operation by him was under the direction of Thompson. Nor do we concur in appellant’s suggestion that the ear was abandoned in the sense that Thompson lost the possession of it by the artifice which induced him to leave it in the road and go to the house where he was subsequently assaulted and imprisoned. The appellant did not acquire the possession of the property by the fraud or artifice. His acquisition of it was subsequent to and by reason of the assault. By its means he gained possession of the property and deprived Thompson thereof. Thompson’s possession continued until the appellant and his companion took actual control of it. ■ Upon this proposition Odell v. State, 44 Tex. Cr. R. 310, 70 S. W. 964, seems directly in point. See, also, State v. Carroll, 214 Mo. 400, 13 S. W. 1051, 21 L. R. A. (N. S.) 311; State v. Williams (Mo.) 183 S. W. 310. State v. Calhoun, 72 Iowa, 432, 34 N. W. 194, 2 Am. St. Rep. 252, is in point on the facts. The statute in that state, however, is more restrictive than ours in that it defines robbery as taking .from the person. The accused therein bound the owner of the property and put her in fear, and thereby extorted from her information as to the locality of money belonging to her in another room in the house. Leaving her bound, they ?rent into the room, found and appropriated the money. The court said:

“We are clearly of the opinion that it was taken from her person in the sense of the word as used in the statute.”

This case was cited with approval by the Supreme Court of Missouri in affirming the case of State v. Williams, 183 S. W. 309, a case in which a railroad station master while he was in the waiting room was fired upon and wounded by some one outside of the depot. Subsequently the assailant entered the ticket office and abstracted the money from the cash drawer. This was held a taking from the person. On the facts of this case, State v. Eddy, 199 S. W. 187, we think, is in point. A man in charge of a drug store was put in fear and caused to lie down behind a prescription case. The accused, leaving him in this position, went to another part of the house and abstracted the money from the cash register. The court held this sustained an allegation that the money was taken from the person, citing Lamb v. State, 242 Mo. 398, 146 S. W. 1169; O’Donnell v. People, 224 Ill. 218, 79 N. E. 639, 8 Ann. Cas. 123; Hill v. State, 42 Neb. 503, 60 N. W. 916.

The issuance of a copy of the sheriff’s return on the special venire on July 4th could not vitiate the return. Webb v. State, 40 S. W. 989; Dunlap v. State, 9 Tex. App. 186, 35 Am. Rep. 736; Pender v. State, 12 Tex. App. 496; Macklin v. State, 53 Tex. Cr. R. 200, 109 S. W. 145.

The failure of some of the veniremen to respond is not a ground for quashing the writ. Hall v. State, 28 Tex. App. 146, 12 S. W. 739; Jones v. State, 214 S. W. 325.

No error is shown in the introduction of photographs of the locality of the crime. See Branch’s Annotated Penal Code, § 1857.

There is no abuse of the discretion of the trial court shown in permitting the state to recall witness Thompson. Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Moore v. State, 7 Tex. App. 14.

The several bills of exceptions have been examined, and in none of them is there error disclosed. '

We think the record requires an affirmative judgment, which is ordered.

On Motion for Rehearing.

Appellant insists that, Thompson having been induced by a trick to leave the automobile on the pike and go to the old outhouse 100 yards distant, from which the automobile could not be seen, the offense committed was not robbery, but theft. The fault in this view, as we endeavored to show in the original opinion, is that the appellant did not acquire the possession of the car when Thompson left it in the road, but acquired it only after he and his companion had forcibly bound Thompson. Our statute makes one guilty of robbery who by assault or violence fraudulently takes from the person or “possession” of another property with intent to appropriate the same to his own use. Article 1327, Penal Code. In our judgment, Thompson was in possession of the car while it was standing in the road, although he could not see it from where he was situated in the old house, and remained in possession of it until the appellant and his companion by force deprived him of it. The case is not one in which the appellant acquired possession — that is, control and management —of the car by a trick. The office of the trick was to induce Thompson to go to the point where the appellant and his companion might safely assault him, and by violence obtain possession of the car. The authorities referred to in the original opinion are, we think, in point, and the conclusion therein reached correct.

We are therefore constrained to overrule the motion for rehearing. 
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