Lead Opinion
Appellant was convicted of the theft of property over the value of $50, and his punishment assessed at confinement in the pеnitentiary for a term of seven years; hence this appeal.
The court did not err in refusing to quash the indictment. The indictment was in two counts, one of which charged theft from the person, and the other theft of property over the value of $50. While they were different offenses, yet it was competent to charge them in distinct counts in the same indictment. Greenwood v. State,
We do not believe it was еrror for the court to refuse to submit to the jury the question as to whether Ed Holton was an accomplice. In our opinion, the testimоny does not put him in that attitude. The court’s charge as to accomplice testimony as applied to Jennie Fuller was not subjеct to the criticism of appellant’s counsel. It was a proper charge.
The court submitted the question of a misdemeanor to the jury; and bsides the court gave the requested charge of appellant on the subject, and under the evidence we beliеve the jury very properly found that appellant was guilty of a felony; that is, that he took more than $50 from the prosecutor Moore at one time. The only witness' who speaks on this subject is Jennie Fuller. Other evidence shows that prosecutor must have gone into her house with $85 in currency. When prosecutor came out of the house he only had $5 in currency. She testifies to three occasiоns in which money was taken from the prosecutor by appellant. In the first she shows that $30 in bills were taken by appellant from prosecutor, and that he handed back to prosecutor a $20 bill. This left prosecutor with $75. She speaks of one other occasion in whiсh bills were taken by appellant from prosecutor, but she was not definite as to the amount. She testifies to the last occasiоn in which only $5 was taken, but this $5 was handed back by appellant to prosecutor. This evidently left $70 or about that amount, certainly over $50, that must have been taken by appellant from prosecutor at one time. In our opinion the testimony is ample. The charge of the court was sufficient. The judgment is affirmed. Affirmed:
Addendum
*28 ON REHEARING.
November 30, 1904.
This case was affirmed at the Austin term, and is now before us on motion for rehearing. It is insisted that the property was delivered by the prosecutor voluntarily, and that there being no taking such as the law contemplates, this could not be thеft. It occurs to us that the evidence sufficiently shows a pretext devised by appellant to induce the prosecutor to part with his money. 'Prosecutor was drunk and was induced by appellant to send for more beer, and he thus obtained possession of prosеcutor’s money under pretext of changing it, when he would appropriate the money, not giving back any change. Besides, articlе 861, Penal Code, makes a conversion of the property, where one obtains it for the purpose of appropriаting it to his own use, theft, regardless of any pretense. Rice, Crim. Ev., p. 736.
Appellant further insists, and strenuously urges before this court, that the evidencе does not show a taking of a sufficient amount of money at any one time to constitute this a felony. This question is considered in the originаl opinion, to which reference is made in this connection. The proof shows that prosecutor had $85 when he went across the street with appellant to Jennie Fuller’s; that he remained there an hour or an hour and a half, during which time there was taken from him $80, for whеn he left the house and came to himself from the effects of the “doping” by appellant, he had only $5, when he is shown to have $85 when he went there. So that, during an hour and a half he was induced by appellant to hand him $80 during two or three occasions to buy beer, which money was not returned. The record informs us that on the first occasion appellant got only $10, and afterward a roll of bills was handed appellant by prosecutor. How many is not distinctly shown, but it is shown that no change was returned'. There’ may have been one other occasion when money was handed by prosecutor to appellant to change in order to pay for beer, in which he apрropriated the money, but this is not made clear. So that there was evidence before the jury of an appropriation of $70 at one time.
However, in our opinion, it is not necessary to rest this decision on that proposition; inasmuch as the evidence shows to our minds that the transaction in which the money was taken was a continuous one. Appellant evidently designed when he went ovеr to Jennie Fuller’s to obtain from prosecutor his money, and to appropriate it to his own use. He proposed to do this by “shоrt-changing” prosecutor, as appellant himself terms it. During the space of an hour or an hour and a half, in one, two, or three trаnsactions, in sending for beer and obtaining money from prosecutor, he is shown to have obtained from him as much as $80, and to have aрpropriated it to his own use. Of this amount he gave Jennie Fuller $20. This, under the authorities, would constitute a continuous transaction. Cody v. State,
Motion for rehearing overruled.