
    Ben Gonzales v. The State.
    No. 20253.
    Delivered March 22, 1939.
    
      The opinion states the case.
    
      John H. Duhig, L. D. Harris, and Edward J. Wilson, all of Houston, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   Krueger, Judge.

The offense is robbery by assault; the punishment is confinement in the state penitentiary for a term of fifteen years.

Appellant takes the position that the evidence is insufficient to sustain his conviction of the offense of robbery by assault. He insists that the evidence only shows theft from the person. After a careful review of the testimony, we are of the opinion that the evidence is sufficient to show that appellant committed the offense of robbery by assault.

Mr. Weiss, the assaulted party, testified that he was living-at the Rio Hotel on September 3, 1938. That about eleven A. M. on said date, he started up the stairway to go to his room. That when he had gotten about half way up, appellant grabbed him, threw him down, and took a pocketbook containing $65.00 out of his pocket and ran out of the hotel. That he followed appellant and called to others to catch him.

Mr. McNeeley testified that a short time before twelve o’clock he was near the Rio Hotel. That he looked through a screen door and saw two persons inside of the hotel scuffling. That appellant came out running, with Weiss closely following him and calling upon the people to catch him. That he, the witness, took part in the chase, overtook appellant and held him until a policeman arrived and took him into custody. All of the money was recovered.

The distinguishing element between theft from the person and robbery by assault is the antecedent assault. We think the evidence is sufficient to show an assault at the time the money was taken by appellant from the person of Weiss.

Appellant caught hold of Weiss, who was over sixty years of age, shoved him down, took his money and fled. Here we have the assault, an attack sufficient to overcome resistance of the assaulted party, and as a result of which appellant obtained the money. We think the facts in the case are sufficient to show robbery by assault. In support of our position we refer to the cases of Anderson v. State, 103 S. W. (2d), 753; Alsobrook v. State, 115 S. W. (2d), 668; Bryant v. State, 55 S. W. (2d), 1037.

Having reached the conclusion that the evidence is sufficient to sustain the conviction, the judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  