Flynn v. State, 42 Tex. 301

Flynn v. State

42 Tex. 301 | Tex. | 1874

Devine, J.

The appellant, with James Anderson, and George Wheeler, was jointly indicted for theft from the person of Nicholas Walsh. The charge was dismissed as to Anderson, the defendant Flynn alone being tried. The jury found him guilty and assessed his punishment at five years in the penitentiary.

The errors assigned are, that the charge of the court was contrary to law, and that it misled the jury; that the court erred in refusing the charge asked by defendant; that the verdict of the jury was not warranted by the evidence, and that the court erred in overruling the motion for a new trial.

The charge of the court was clear, concise, and embraced the law applicable to the case; it directed the mind of the jury to the law, which had reference only to the facts in evidence ; it *304was quite as favorable to the accused as the evidence demanded, or the law permitted. We find no error in the charge. The refusal of the court to give the instruction asked for defendant, was, under the facts of the case and the law, a proper exercise of discretion. The evidence, uncontradicted, shows that while appellant’s co-defendant and associate, Wheeler, was “jostling “against him,” Walsh, and impeding his exit from the crowd at the theater, appellant forced his hand into Walsh’s pocket, took the pocket-book into his hand, and drew it half way out of the pocket; when the owner feeling the movement, turned suddenly around, and, with an angry exclamation, disconcerted the accused, who then made his escape. The witness stating further, that he resisted defendant’s going away with the book, as (well) as. he could, on finding him withdraw it. The accused was indicted under Article 762 of the Criminal Code. Article 763 defines the necessary requisites to constitute the offense. 1st. A theft from the person. 2d. The commission of the theft without the knowledge of the person from whom the property is taken, or so suddenly as not to allow time to make resistance before the property is carried away ; and, 3d. “ It is “ only necessary that the property stolen should have gone into “ the possession of the thief, it need not be carried away in order “ to complete the offense.” In the present case it was taken from the person, from the place where the owner had deposited it. 4th. While Walsh was annoyed and his attention attracted by Wheeler, the defendant (in the language of the Code), “ pri- “ vately ” took into his possession the pocket-book, and without the knowledge of the owner. 5th. The evidence shows he had, or held it in his hand, had removed it half out of the pocket—a sufficient possession within the letter and spirit of the Code—of property as small and portable as the article taken. The provision in Article 763, which dispenses with the necessity of proving the carrying away of property stolen from the person, and which makes the mere going into the possession of the thief of such property, sufficient proof, justified the court in refusing the instruction asked.

*305The object of the framers of the Oode in prescribing the same punishment for theft from the person and theft from a house, was evidently to give to the property on the person the same degree of protection as is given to property in a house ; in the last case it is not necessary to show a removal of the property charged to have been taken from the house, the reason of the rule is quite as strong when applied to property on the person, and the Code has removed doubt on this subject by declaring the offense complete when the property charged to have been stolen is taken into the possession of the person charged with the theft. That the offense is complete when the property is taken into possession was so held in a case decided during the late session at Tyler, where a party attempted to steal money during the night from the clothing of a companion with "whom he was traveling.

The evidence sustains the verdict, and there was no error in overruling the motion for a new trial.

Affirmed.