Atkinson v. State , 34 Tex. Crim. 424 ( 1895 )

The appellant in this case was tried in the court below on a charge of assault with intent to commit robbery, and his punishment assessed at confinement in the penitentiary for a term of two years. Appellant assigns as error the refusal of the court to quash the indictment in this case, and also the refusal of the court to arrest the judgment, which involves the validity of the indictment to charge the offense. The indictment charges that the appellant "did make an assault," etc., "upon one S.D. Knox, and, by putting him in fear of life and bodily injury, did attempt to fraudulently take from the person and possession of the said S.D. Knox certain personal property," etc. The appellant insists, that the indictment should have charged that the assault was made with the intent to rob, and that the use of the word "attempt" does not convey the same meaning, and vitiates the indictment. Webster defines an "attempt" as follows: "To make trial or experiment of; to try; to endeavor." In 1 American and English Encyclopedia of Law, p. 936, it is defined as "an effort or endeavor; an act tending towards the accomplishment of a purpose which exceeds a mere intent or design, but falls short of an execution of it." Mr. Bishop (1 Criminal Procedure, section 80) says: "It seems impossible to doubt that the only distinction between an 'intent' and an 'attempt' to do a thing is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution. Since, therefore, the word 'attempt' embraces the full meaning of 'intent,' with something more, it is not impossible that the courts may hereafter hold it to be an admissible substitute in an indictment." Our Penal Code, article 722, defines "robbery" as "a fraudulently taking from the person or possession of another any property with intent to appropriate the same to the use of the taker by means of an assault," etc. The indictment in this case properly charges an assault, and then charges an attempt to fraudulently take personal property from the person or possession of the assaulted party, with intent to appropriate same to the use of defendant. It is difficult to see how an assault could be made on a person, and at the same time an endeavor or effort made to fraudulently take from such person property in his possession, without such party entertaining at the time the intent to do what he was then endeavoring to accomplish; and, in our opinion, the allegation of attempt in this case, in the connection in which it is used, embraces the technical word "intent" as used in the statute, and we accordingly hold the indictment good. Curry v. The State, 4 Texas Crim. App., 575; Hart v. The State, 38 Tex. 383; Prince v. The State, 35 Ala. 367; Johnson v. The State, 14 Ga. 55.

The appellant also complains in this case, that the court erred in refusing to permit the witness Dr. Vann to testify as to a conversation between the appellant and himself with regard to the alleged assault, and he claims that this testimony was rendered admissible because the State had introduced the sheriff, who testified as to the statement made to him by the defendant several days previous to the alleged conversation between said witness Vann and appellant. It is sufficient to say, that the testimony offered from the witness Vann was no part of the conversation which had been adduced by the State. Though on the same subject, it was an entirely new and distinct conversation between said witness and the defendant, having no connection with the previous conversation, and the court did not err in refusing to admit same.

With regard to the admission of the testimony of the witness Tullas, as to declarations made by Asa Perry, one of the parties engaged in the assault, made to him on the evening of the day when said assault is alleged to have been made, same was rendered admissible by other evidence in the case which tended to show a conspiracy between the said Asa Perry, Marcus Ross, and the appellant to rob the said S.D. Knox. The evidence leaves no question as to the defendant's being present at the time the alleged assault was made on Knox. He admits this himself, and states when he heard the shooting in front of the store he immediately ran around, and was shot in the knee, and then ran off. The witness Knox testifies positively to the assault. He killed Asa Perry, one of the assaulting party, and testifies that he shot at another as he ran out of the store. This was not a case depending wholly on circumstantial evidence, and the court committed no error in failing to charge on circumstantial evidence.

We find no error in the record requiring the reversal of this case, and it is accordingly affirmed.

Affirmed.

Judges all present and concurring.