WOODLEY, Presiding Judge.
The offense is robbery with firearms; the punishment, 50 years.
The indictment, returned April 26, 1965, alleged that appellant and Sammy Joe Jones acting together on or about March 5, 1965, made an assault upon Sophie Salverino and by assault and by violence and by putting her in fear of life or bodily injury and by using and exhibiting a gun, fraudulently took from the person and possession of Sophie Salverino without her consent and against her will one purse, one billfold and $15.00 in money.
The state having withdrawn its notice of intent to seek the death penalty and having given notice that it would not, the case came on for trial on September 9, 1966, and the jury having found appellant guilty, appellant elected to have the same jury assess the punishment.
The evidence upon which the state relied for conviction is summarized in the state's brief as follows:
"On or about the 5th of March, 1965, Sophie Salverino and her husband Frank, were preparing to close their grocery store in Dallas, Texas. At about 10:00 p. m., her husband walked out to get into his car, Sophie to follow when the car had been started. As soon as Frank started to open the car door, Sophie saw a flash and heard a `bang' and shouted, `Oh my God! Frank has been shot.' Sophie went to aid her husband, taking her purse, which she already had in her hand. While attempting to aid Frank, she placed her purse on the seat of their car, from where it disappeared. Four days later, the Appellant was arrested and made an oral statement which led police officers to the recovery of Sophie's purse."
Appellant's brief sets out the state's evidence as follows:
"The witness, Sophie Salvarino, testified for the State that her husband was shot in front of their grocery store, and that she lost a purse, and contents thereof, which had been placed in a truck nearby, but she did not testify that there was any direct contact with her person.
"J. L. Hoenburger, who worked for Sophie Salvarino in the grocery store, testified about the condition of Mr. Salvarino, and Mrs. Salvarino in front of the store.
"The officers for the City of Dallas, Texas, testifying in this case testified about the arrest of the defendant and the subsequent interrogation and oral confession, which was reduced to writing, received from the said defendant, but no one testified of having seen the defendant at the scene of the robbery, or connecting him with same, other than the defendant's statement in this case."
Mrs. Salverino testified that she had a purse in her hand when she went to the
She identified the purse which was found five days later as the result of the oral statement or confession of appellant, in which he confessed to having participated in the robbery. She also identified the contents of the purse which had been found spilled on the ground near the purse which was hanging open in a tree. She testified that the purse she put on the car seat, and its contents, belonged to her and that she did not give appellant or anyone else permission to take her purse.
We are in accord with the state's contention that Mrs. Salverino did not relinquish possession of her purse and its contents by placing them on the car seat, and that one may be robbed of property not taken from his person. Ibeck v. State, 112 Tex.Cr.R. 287, 16 S.W.2d 232; Goodrum v. State, 172 Tex.Cr.R. 449, 358 S.W.2d 120.
Also, we find no merit in appellant's contention that Mrs. Salverino was not put in fear of her life or bodily injury. Cranford v. State, Tex.Cr.App., 377 S.W.2d 957.
Appellant's grounds of error 2 to 6 inclusive relate to the admission in evidence of the oral statement or confession of appellant and the evidence obtained as a result of such confession.
Ground of error No. 2 is: "The trial court erred in allowing, over the defendant's objections and exceptions, the testimony from state's witnesses as to the oral statement and confession made by the defendant in this cause."
Ground of error No. 3 is: "The court erred in finding that the statement received into evidence in this cause met the requirements of the law to make it voluntary and useful against defendant in a criminal case."
The robbery was committed March 5, 1965, and the statement was made March 9, 1965. Trial was on September 9, 1966.
The trial judge, upon the evidence adduced before him, found that the oral statement of appellant which implicated him as a principal in the robbery was given in accordance with the statutes of the State of Texas.
The applicable statutes at the time the statement was made were Article 726 C.C.P. 1925, now Art. 38.21 Vernon's Ann. C.C.P. (not materially changed) which provides:
and Art. 727 C.C.P. 1925, which as it related to oral confessions provided in part:
Article 38.22 of the 1965 Code of Criminal Procedure, in effect at the time the oral confession was admitted in evidence, contained the identical provision, but by reason of the inadvertent omission of a portion of the succeeding sentence of Art. 727, supra, (which related to the statement of a defendant unable to write his name, who signs it by making his mark), Art. 38.22 of the 1965 Code added to the above quoted provision of Art. 727 the following:
The evidence from which the trial court concluded that the oral confession was admissible included the following:
About 4 or 4:30 P.M. on March 9, 1965 (four days after the robbery), Detective Parks received information from appellant's codefendant Sammy Joe Jones that appellant was with him when he committed the robbery and killed Mr. Salverino. Parks and his fellow officers then went to appellant's home to arrest him and took him to jail.
About 7:30 P.M. appellant was brought out of jail into the Homicide Office.
Detective Verlon Monaghen testified in part:
Captain J. W. Fritz testified in part:
And on cross-examination he testified:
Detective Preston Parks, the arresting officer, testified that on the morning of March 10, 1965, he and Captain Fritz had a conversation with appellant at the homicide bureau and further testified in part:
After the court had ruled that the confession was admissible and it had been introduced before the jury, appellant was allowed to testify before the court in the jury's absence. He did not testify before the jury.
He testified before the court that neither Captain Fritz nor anybody else advised him that he did not have to make a statement if he did not want to, or that he could have a lawyer or that any statement he made could be used against him. Except for the fact that he was not taken before a magistrate
Failure to take appellant before a magistrate did not render his oral statement inadmissible, no causal connection between such failure and the fact that the statement was made being shown. Dugger v. State, Tex.Cr.App., 402 S.W.2d 178; Ward v. State, Tex.Cr.App., 399 S.W.2d 567; Ferrell v. State, Tex.Cr.App., 397 S.W.2d 86; Nixon v. State, Tex.Cr.App., 406 S.W.2d 445.
Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided after the confession was made but prior to the trial at which it was admitted in evidence.
We overrule the contention that the oral confession of appellant was not admissible under the holding of the Supreme Court in Miranda v. State of Arizona, supra, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, or under the Texas Statutes relating to oral confessions.
Our holding that the confession was admissible disposes of appellant's contention that the purse and contents found as a result thereof were not admissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
The court in his charge to which no written objections were made instructed the jury to acquit the defendant unless they believed and found beyond a reasonable doubt that appellant:
The trial court did not err in overruling appellant's motion for instructed verdict of not guilty.
Ground of error No. 6 is: The Court erred in not including in its charge to the jury relating to the confession of the defendant that the police authorities must have warned this defendant that he could be silent and did not have to say a word, in addition to the charge given.
In view of the charge given and the absence of objection in writing, as required by Art. 36.14 V.A.C.C.P., this ground of error is overruled.
The remaining ground of error complains that at the hearing on the issue of punishment to be assessed the trial court erred in permitting testimony as to the prior probated sentence for Burglary received by appellant.
The evidence reflects that the period of probation had not expired. The evidence was admissible under the provisions of Articles 38.29 and 37.07, subd. 2(b), V.A. C.C.P. (1965).
The judgment is affirmed.
I need not address myself to the question of the sufficiency of the warning given appellant prior to the giving by him of a statement or confession, because there is another and far more fundamental error in
Robbery is one offense and theft is another. Facts showing theft will not support a conviction for robbery. There were a number of cases which demonstrated the distinction prior to Van Arsdale v. State, 149 Tex.Cr.R. 639, 198 S.W.2d 270. See Reese v. State, 91 Tex.Cr.R. 457, 239 S.W. 619; Harris v. State, 118 Tex.Cr.R. 597, 39 S.W.2d 888; Bryant v. State, 122 Tex.Cr.R. 385, 55 S.W.2d 1037; Flores v. State, 145 Tex.Cr.R. 134, 166 S.W.2d 706; and Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965. Still other cases have distinguished robbery from theft from the person. See Hammond v. State, 121 Tex.Cr. R. 596, 49 S.W.2d 779; Anderson v. State, 132 Tex.Cr.R. 255, 103 S.W.2d 753; and Alsobrook v. State, 134 Tex.Cr.R. 322, 115 S.W.2d 668.
Since Van Arsdale v. State, supra, this Court has in Woods v. State, 153 Tex.Cr.R. 457, 220 S.W.2d 644; Polk v. State, 157 Tex.Cr.R. 75, 246 S.W.2d 879; Bell v. State, 167 Tex.Cr.R. 460, 321 S.W.2d 302; and Cassidy v. State, 168 Tex.Cr.R. 254, 324 S.W.2d 857; said, "In Van Arsdale v. State, 149 Tex.Cr.R. 639, 198 S.W.2d 270, we had occasion to point out that a distinction between robbery and theft from the person lies in the fact that in robbery there must exist the actual or threatened violence to the person antecedent to the robbery, which is not true of theft from the person." Polk v. State, supra. See also Gallagher v. State, 34 Tex.Cr.R. 306, 30 S.W. 557; Johnson v. State, 35 Tex.Cr.R. 140, 32 S.W. 537; Jarrott v. State, 96 Tex.Cr.R. 239, 257 S.W. 256; and Gonzales v. State, 136 Tex.Cr.R. 469, 126 S.W.2d 492.
The majority opinion quotes this unfortunate woman as saying she was scared. Of course she was scared, because her husband had just been shot, but there is not a scintilla of evidence that there was any actual or threatened violence to her. She ran to the aid of her dying husband, and on the way set her purse down because its presence in her hand hampered her in her efforts to assist her husband. If appellant's co-defendant took the purse from where the woman had placed it, he became guilty of theft, but certainly not robbery.
No matter how guilty this accused may be, he has a constitutional right to be tried for the offense which he committed and not another. The cases cited above are but a few in which this Court has steadfastly adhered to this principal.
I respectfully dissent to the affirmance of this conviction for the reasons stated above.
ONION, J., joins in this dissent.
The act of the Legislature amending Art. 38.22 and other Articles of the 1965 Code of Criminal Procedure contains the further provision: