Guyon v. State

MORROW, Presiding Judge. Appellant was convicted of robbery ; punishment fixed at confinement in the penitentiary for a period of ten years. In the indictment Lawrence Little is named as owner. Little was an employee of the Uvalde State Bank, a corporation; one, Brashear was the cashier, and McNally the president. Little and Brashear, the cashier, usually reached the bank in the morning at about the same hour. They both, as well as the president, knew the combination to the vault and the safe in which the bank’s money was kept. The one first arriving would open the vault and arrange the affairs of the bank for the conduct of business. On the day the offense was committed, Brashear was absent from town. Little went to the bank at his usual time and found there the janitor, one Anderson. Soon after his arrival, the appellant entered wearing a suit of overalls and a false face and carrying a pistol in his hand. By threats he caused Little to open the vault and the safe and to take therefrom the sum of over $6,000 in currency, which was delivered to the appellant. These facts were not controverted but appellant insists that inasmuch as the money taken was the property of the bank, there is a variance between the proof and the averment of ownership. The fact that the property belonged to the corporation did not render it necessary that it should be named in the indictment as the owner. Price v. State, 55 Texas Crim. Rep., 160; Ricks v. State, 41 Texas Crim. Rep., 677; Thurmond v. State, 30 Texas Crim. App., 539. Naming the special owner in possession would comply with the requirements of the law. (Art. 457, Code of Crim. Procedure; Otero v. State, 30 Texas Crim. App., 450; Bailey v. State, 20 Texas Crim. App., 68; Alexander v. State, 24 Texas Crim. App., 126; Branch’s Ann. Tex. Penal Code, Sec 2440 and 2477. The rules with reference to the allegation and proof of ownership in the offense of robbery are not more restrictive than those pertaining to the offense of theft. Ruling Case Law, Vol. 23, page 1154, Sec. 20 and notes. Appellant insists, however, that under the evidence Little was a mere custodian or servant, and therefore was not a special owner within the meaning of the law. The relation of Little to the personal property in the bank was disclosed by the evidence without conflict. McNally, the president, testified that he had supervision of the bank and was there practically every day; that both Brashear, the cashier, and Little were compensated with a salary; that Brashear ordinarily had *290 the management of the bank’s affairs under the supervision of a board of directions and the president. Little kept the books and was head man in the absence of Brashear. McNally said that his principal work was to advise the cashier regarding loans and extensions; and that in the absence of Brashear, Little’s authority was the same as the cashier. Little was assistant cashier. The cashier, according to the evidence, had authority to lend the bank’s funds; that Little, in conducting the business, made loans. At the time the offense was committed, there was no officer of the bank present save Little, and no other employee save the janitor. Its funds, after the safe was opened, was taken out of the safe by Little. That Little was a special owner of the property and in possession of it at the time of the robbery, under the evidence, is not, we think, a matter of doubt. Bagley v. State, 3 Texas Crim. App., 167; Branch’s Texas Crim. Law, Sec. 781; L. R. A. New Series, Vol. 21, page 312, and note. The evidence is not pontroverted that Little was caused to open the vault and safe, and to deliver the money in obedience to the command of the appellant by holding in his hand a loaded pistol, in a manner manifesting an intent and ability to enforce his demand by the use of the weapon. It is also in evidence, without conflict, that Little complied because he was put in fear of his life by the acts of the appellant. We discern no reason for charging on the lower grades of offenses. The evidence all pointed to the offense of robbery. The consent of Little to the delivery does charge the nature of the offense. Wharton’s Crim. Law, Vol. 2, Sec. 1091; Brown v. State, 61 Texas Crim. Rep., 334; Green v. State, 66 Texas Crim. Rep., 446, 147 S. W. Rep., 593. The contention that the indictment is duplicitous in that it charges robbery by assault and by the use of fire-arms, is one that this court sanctioned in the case of Murdock v. State, 52 Texas Crim. Rep., 263, but from which it later receded. Crouch v. State, 87 Texas Crim. Rep., 115, 219 S. W. Rep., 1099, and cases therein cited. One of the jurors on the special venire list, on his voir dire, stated that he had an opinion touching the merits of the case, and also that he was a director of the First State Bank of Uvalde. The district attorney thereupon asked that he be excused. The court assented and appellant’s attorney interposed an objection, stating that the indictment named Little as the owner and the record did not disclose any such interest of the First State Bank as would disqualify the juror, whereupon the court withdrew the dismissal of the juror and he was taken as a juror, the appellant, at the time, having unused peremptory challenges. Upon these facts and the development in the evidence of the interest of the First State Bank in the money taken, the appellant, after verdict, sought á new trial because of the disqualification of the juror. The funds of the bank were recovered. If the juror was disqualified, the appellant had power to waive it. His waiver was af *291 firmative, and appellant at the time was conscious of the fact that the money taken was the property of the First State Bank of Uvalde; that the vault and safe which he forced the officer to open belonged to the bank and he was afforded the right to challenge the juror for cause and had available peremptory challenges by means of which juror service upon the jury could have been avoided. By his conduct, he wilfully abandoned a known privilege and after the verdict is not in a position, by reasserting it, to annul the result of the trial. The court was right in refusing to sustain this ground of the motion for a new trial. In a very recent case, we have reviewed the subject of a waiver of the disqualification of a juror and there will be found in the reasons given the citation of precedents and references to statutes contained in the opinion of Judge Lattimore in the case of Lowe v. State, 88 Texas Crim. Rep.,316, 226 S. W .Rep., 675, all and more than will be demanded in the disposition of the point raised upon the present occasion. There is no error revealed. The judgment is affirmed. Affirmed.