
    GREEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    Criminal Daw (§ 815) — Robbery — Instructions Ignoring Issues.
    In a prosecution for theft from the person, where the prosecuting witness testified that accused snatched the money from him, and accused contended that he won the money in gambling, and introduced evidence to that effect, a charge that if accused won the money gambling, or in a game in which the owner participated, he should be acquitted, or if the jury had a reasonable doubt of those questions he should be acquitted, is not improper, as excluding from consideration of the jury the questions whether the prosecuting witness had any money, or whether the money found on accused was the money which he had won.
    [Ed. Note.- — For other cases see Criminal Daw, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    Appeal from District Court,' Galveston County; John M. Conley, Acting Judge.
    W. Green was, convicted of theft from the person, and he appeals.
    Affirmed.
    O. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-Noi Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of theft from the person; his punishment being assessed at two years’ confinement in the penitentiary.

It is unnecessary to go into a detailed statement of the evidence. There were two issues sharply put. That for the state shows a clear ease of theft from the person, while appellant’s evidence is to the effect the alleged injured party lost the money in a gambling hell in a game of dice called craps. On the face of the evidence the jury was justified in believing the state’s view of the ease. They saw proper to do so, and this court would not be justified in holding that the verdict was wrong from that standpoint.

The court submitted the state’s side of it in the ordinary way, and for the defendant charged that, if the jury should believe the defendant won the money gambling with dice from the alleged owner, or in a game in which said owner participated,' they should acquit the defendant, or if they had a reasonable doubt of those questions they should acquit. This charge is attacked as being incorrect. The contention is that the court erred in limiting the defensive theory that defendant won the identical money described in the indictment from the owner, or in a game in which he participated; whereas said charge should have authorized the jury to return a verdict of not guilty, if they found and believed or had a reasonable doubt as to whether or not defendant came into possession of the money described in the indictment, or any part thereof, in any other manner than that charged in the indictment, there being evidence to the effect that defendant had earned money, and a portion of the money taken from him and described in,the indictment, in..legitimate labor during tbe week just ending at the date of the alleged offense, and such charge eliminated from the consideration of the jury the mooted question as to whether or not Renchie, the injured party, had any such sum of money at the time it is alleged same was taken from him.

We are of the opinion there is no merit in' this. The theory of the defense was that Renchie, the alleged injured party, went into the gambling room and engaged in a game of dice, and lost his money, and that appellant won the money. Some of the witnesses testified that the injured party changed a $10 bill and lost the money in that manner; some of them testified that they saw him bet a $10 bill; and it is also in evidence by some of the defendant’s evidence that the injured party lost a $5 bill and a $2 bill on the game. It seems, however, that defendant won all the money that was lost. The jury would not be misled, under the charge of the court that if appellant won the money on the game, either directly from the alleged injured party, or that Renchie, the injured party, lost it in a game in which appellant participated, in either event appellant would not be guilty of theft from the person under the state’s case.

The state’s case was strongly put as testimony could put it, and, if true, the appellant snatched $27 in currency from Renchie on the street, and did not get it in the gambling room. Renehie’s testimony was that he had just emerged from a restaurant, where he had gone to purchase fish, and had the money in his hand — two $10 bills, a $5 bill, and a $2 bill — and appellant grabbed the money and fled with it; that he chased him some distance, into a room where he called an officer, who arrested appellant and took the $27 from him. The officer testifies to the fact that Renchie called him, and that he took the $27 away from appellant. Appellant’s whole case was that he won the money in the crap game. Under these facts we do not believe there was any error in the court’s charge, and that the criticisms are not of such a nature as would authorize a reversal of the judgment.

It is therefore ordered to be affirmed.  