Opinion
No. 21432.
Delivered February 12, 1941.
1. — Robbery of Person by Assault — New Trial — Name in Indictment.
In prosecution for robbery of the person by assault, defendant held not entitled to a new trial on the ground that the allegation and proof failed to correspond in the matter of the name of the person alleged to have been robbed, because the prosecuting witness' first name was given in the indictment as "Toleno" and he testified that his first name was "Victoriano," where he also testified that he went by the name of "Toleno," since if the prosecuting witness is known by two names, it is sufficient to allege either name in the indictment.
2. — Robbery of Person by Assault — Evidence — Force.
Evidence that defendant struck the prosecuting witness over the head and knocked him down, and while the prosecuting witness was down, defendant again struck prosecuting witness and ran his fingers under the prosecuting witness' fingers and forcibly took money out of the prosecuting witness' hand and left, was sufficient to sustain conviction for robbery of the person by assault.
Appeal from District Court of Kinney County. Hon. Brian Montague, Judge.
Appeal from conviction for robbery of the person by assault; penalty, confinement in penitentiary for five years.
Judgment affirmed.
The opinion states the case.
Ditzler H. Jones, of Uvalde, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Appellant was charged with robbery of the person by assault, and by the jury awarded a penalty of five years in the penitentiary.
He complains in his motion for a new trial of a failure of the allegation and proof to correspond in the matter of the name of the person alleged to have been robbed. We find that the indictment alleges the person robbed to have been named Toleno Rodriguez, and we find the testimony of the witness to be:
"My name is Victoriano Rodriguez, and I also go by the name of Toleno Rodriguez; they call me Toleno Sanchez but its Toleno Rodriguez; that's my name, Toleno Rodriguez, and I live here in Bracket, and have lived here since I was a boy."
It seems that the injured party was known by possibly two names, and it seems to be sufficient to allege either name in the indictment. See Branch's Penal Code, p. 239, Sec. 464; Stokes v. State, 46 Tex.Crim. R., 81 S.W. 1213.
The testimony shows that appellant struck the complaining witness over the head and knocked him down, and while the witness was down appellant again struck witness and then ran his fingers under the fingers of the complaining witness and forcibly took the money out of witness' hand and left. We think these facts show a robbery by assault as charged in the indictment.
We find no error presented to us, and therefore the judgment is affirmed.