79 S.W. 311 | Tex. Crim. App. | 1904
The information charges appellant with theft of eighty-five cents, lawful current money of the United States of America. The evidence on the trial showed the eighty-five cents were in nickels. The contention is that this is not lawful or legal tender coin of the United States, hence there is a variance between the allegations and proof. In support of this contention we are referred to Perry v. State, 42 Tex.Crim. Rep.; Otero v. State, 30 Texas Crim. App., 450; Thompson v. State,
It is contended that the evidence is not sufficient to justify the conviction. In regard to the main facts of the case there is no divergence in the evidence. Appellant and several other boys were in the store of Dockery Son, where Bert Harvey was clerking. Harvey went into an adjoining room. Appellant went to the cash drawer and took eighty-five cents in nickels therefrom, remarking to all present at the time he took the money, "I am going to play a joke on Bert" (referring to the clerk Harvey.) When Harvey came back in the room, appellant gave him the money he had taken from the drawer, and told him to credit it on his account. This was about the noon hour. Harvey took the money and made a note of it on a tablet. Several witnesses were present, who saw and heard all that occurred; in fact there is no question as to this phase of the case. At the time appellant handed Harvey the money, the boys were laughing and winking at each other. After Harvey made the entry on the tablet, the boys left the house, returning to the schoolhouse, where they were attending school. As they left the house one of them told appellant he had better tell Harvey about taking the eighty-five cents out of the drawer. He replied, "There is no use of that, as Bert understood how it was; the boys all laughed when I gave him the money." It is further shown it was a common thing among the boys in the neighborhood to play practical jokes on each other; they took little things from each other, such as handkerchiefs, pocketknives, etc., kept them awhile, and then gave them back to the owner. In order to constitute theft, there must be a fraudulent taking, and the fraudulent intent must exist at the time of the taking. The public manner of this taking, what occurred between the *109 parties, and all the environments of the case, it occurs to us, indicates that appellant at the time he took the money did not intend a fraudulent taking. We do not believe the testimony justifies this conviction under the circumstances. There are some other questions raised in the case, which under the disposition we have made of it are deemed unnecessary to discuss. The judgment is reversed and the cause remanded.
Reversed and remanded.