
    FISHER v. STATE.
    (No. 9363.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.)
    1. Robbery &wkey;>4 — One retaking by force his own property, obtained by another through use of marked cards in card game, not guilty of robbery.
    One wbo through another’s use of marked cards in a card game is induced to part with bis money and place it under tbe other’s control is not guilty of robbery in retaking it, though he uses force.
    2. Robbery <&wkey;4 — One retaking his own property unlawfully acquired by another, not guilty of robbery.
    One retaking his own specific property from another, who has acquired it unlawfully, is not guilty of robbery, though the retaking was accomplished under circumstances such as would otherwise amount to robbery.
    Commissioners’ Decision.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Pat Fisher was convicted of robbery, and ,he appeals.
    Reversed and remanded.
    D. G. Mathews, of Floydada, and W. W. Kirk, of Plainview, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for tbe State.
   BERRY, J.

Tbe appellant was convicted in’ tbe district court of Hale county for the offense of robbery, and bis punishment assessed at confinement in tbe penitentiary for a term of five years.

The facts show the robbery occurred while a card game was going on, and it was tbe appellant’s theory, supported by bis testimony and that of his witnesses, that the alleged injured party bad used marked cards in tbe game although falsely claiming they were not marked, and by so doing bad acquired his money, and that if any assault was made it was made alone for the purpose of retaking tbe money belonging to him wbicb tbe alleged injured party bad thus fraudulently acquired.

The appellant’s complaint is at tbe court’s action in refusing to affirmatively submit tbis theory of tbe case to tbe jury. Tbe only charge on this issue submitted to the jury by tbe court is as follows:

“You. are instructed that if you believe from the evidence that on the date and at the place alleged there was disturbance in the home of the defendant Pat Fisher, but that in the disturbance the said Pat Fisher accused the said George Saunders of cheating at cards, and that the assault, if any, was only made for the purpose of ejecting or having the said George Saunders leave the premises of the defendant and not for the purpose of obtaining the money of the said George Saunders, then in that event you will acquit the defendant, or if you have a reasonable doubt on this point you will acquit the defendant.” •

Appellant leveled many pertinent objections at tbis charge and offered a special charge presenting bis theory of the case. Appellant’s objections to tbe charge were overruled and bis special charge refused. It was tbe appellant’s theory of tbe case that if be was induced to part with bis money and place it under the control of Saunders through a device used by • Saunders of marked cards, be would not be guilty of tbe offense of robbery in regaining possession of it, though in so doing he used force.

We think a charge embodying tbis principle should have been given in tbis ease. Temple v. State, 86 Tex. Cr. R. 219, 215 S. W. 965. In that case Presiding Judge Morrow drew a very clear distinction between tbe proposition here set out and that presented and decided in tbe ease of Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368. Tbe Blain Case, supra, bolds that when one playing at a gambling bouse loses money under the rules of the game and surrenders it to bis adversary, be may be guilty of robbery when be regains it by force. But in tbis case, as in tbe Temple Case, supra, if appellant’s theory is correct, be was ináueed to part with bis money, not according to tbe rules of tbe game, but by reason of tbe fraudulent practice of bis adversary in using marked cards. We think the Temple Case, supra, and the authorities there cited, make it clear that the appellant was entitled to a charge in this case presenting the theory that if the money was acquired from him through the device of using marked cards hy Saunders, then in that event he would not be guilty of the offense of robbery in regaining possession of it. For it is well settled that one cannot be guilty of robbery by taking his own specific property from the possession of another who has acquired it unlawfully, although the taking may be accomplished under such circumstances as would amount to robbery if the property belonged to the person from whom it was taken. Barton v. State, 88 Tex. Cr. R. 368, 227 S. W. 317, 13 A. L. R. 147; Glenn v. State, 49 Tex. Cr. R. 349, 92 S. W. 806, 13 Ann. Cas. 774; Barnes v. State, 9 Tex. App. 128; Higgins v. State (Tex. App.) 19 S. W. 503; Smedly v. State, 30 Tex. 214; 13 Ann. Cas. 775, note.

We think the charge should have been so amended that it would have appropriately presented the appellant’s rights in the event the jury believed from the evidence that the money was obtained from him by the fraudulent use of marked cards, and the failure to so. instruct the jury constitutes error requiring a reversal.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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. 
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