Cunningham v. State

27 Tex. Ct. App. 479 | Tex. App. | 1889

White, Presiding Judge.

1. The witness Hirsch swore positively that the railroad ticket was purchased by him in Dallas for twenty-five dollars and that it was worth in Dallas fifty-five dollars. This fact having been thus proven by said witness renders immaterial appellant’s first three bills of exceptions reserved as to the admission of evidence of value over his objections, and if in any manner erroneous, the error is without .prejudice and harmless.

2. There was no error in excluding the letter of Cark, the general passenger agent of the railroad, notifying conductors that ticket had been stolen, and instructing them to take up, cancel and return the same to his office. The rejected evidence could throw no possible light upon the transaction under investigation.

3. Several objections to the charge of the court to the jury were saved by bills of exception which appear in the record: 1. The ownership of the ticket was averred in the indictment to be in the Gulf, Colorado and Santa Fe Railroad Company, and the court nowhere instructs the jury in terms that they should find the ownership to be proven as charged, in order to convict. But while the charge is perhaps critically obnoxious to the objection, yet, when taken in connection with the fact that there was no question as to the ownership and possession raised by the evidence, and the further fact that the jury were charged as to the necessity of finding all the other essential ingredients and the elements of a theft of property stolen from the possession of said railroad company, we do not think the omission complained of would be reversible error in the absense of a refused special requested instruction supplying the defect or omission. There was no contest or dispute as to the ownership and .possession; it was fully proven as alleged, and the jury could not possibly have been misled nor the accused in any manner prejudiced by the omission to charge in terms the necessity of finding the fact as alleged and proven. Had there been any question as to ownership, the objection would doubtless have been fatal. (Kay v. The State, 40 Texas, 29; Bray v. The State, 41 Texas, 560; Williams v. The State, 4 Texas Ct. App., 5; Robinson v. The State, 5 Texas Ct. App., 519; Smith v. The State, 7 Texas Ct. App., 382.)

2. With regard to the value of the ticket, the jury were instructed that if they believed the theft had been committed in Burleson county, and the property was brought defendant into Dallas county, “but that the market value of the ticket at Dallas, Texas, was not over twenty dollars, or, if you have in your mind a reasonable doubt, from the evidence, as to whether the ticket was over the value of twenty dollars, then you should find him guilty of a misdemeanor,” etc. The charge is erroneous in that the statute makes it a felony to steal property of the value of twenty dollars, and does not require that the value should be over that amount. (Penal Code, arts. 735, 736.) The instruction was favorable to the defendant, but, being erroneous and excepted to at the time, the error is fatal. If error of law occurs in the charge as given, no matter how immaterial it may be, if it is promptly excepted to and presented by a proper bill of exception on appeal, the statute (Code Crim. Proc., art. 685) is mandatory that the conviction shall be set aside without inquiry as to the effect of such error upon the jury. (Willson’s Crim. Stats., sec. 2363.)

3. Another portion of the charge which was excepted to was as follows: “But if you are satisfied that, although the ticket came into his (defendant’s) possession by lawful means, and you are further satisfied from the evidence beyond a reasonable doubt that the defendant afterward took the ticket with the intent to deprive the railway company of the value thereof and appropriate the same to his own use and benefit, and the same was so appropriated, the offense of theft is complete.” This instruction was erroneous. The correct rale is that “when the taking of the property was originally lawful, that is, when the property came into the possession of the accused not wrongfully, but laiofully, a conviction for theft can not be sustained unless it be shown that the accused obtained the property by some false pretext, or with the intent, at the very time of obtaining the property, of depriving the owner of the value thereof and appropriating the property to the use and benefit of the person taking; and it must further appear that the property was so appropriated.” “The fraudulent intent must exist at the very time of acquiring the possession of the property. Ho subsequent fraudulent intent or appropriation of the property will suffice to constitute the original lawful taking theft.” (Willson’s Crim. Stats., sec. 1269; Taylor v. The State, 25 Texas Ct. App., 96; Guest v. The State, 24 Texas Ct. App., 235; Penal Code, art. 727.)

4. The charge was also specially excepted to because it submitted the issue of petty or misdemeanor theft, that is, theft of property under the value of twenty dollars, there being no evidence calling for such a charge, and all the testimony going to show that the ticket, if worth anything at all, was worth more than twenty dollars. This exception is also well taken. A charge which submits issues not raised by the evidence is erroneous, and, when excepted to as in this case, such error is reversible.

Opinion delivered April 20, 1889.

For errors in the charge of the court above pointed out and discussed, the judgment is reversed and the cause is remanded.

Reversed and remanded„