72 S.W.2d 288 | Tex. Crim. App. | 1934
Lead Opinion
Conviction for chicken theft; punishment, a fine of ten dollars.
Appellant raises many questions, and has prepared and presents a brief showing labor and effort.
He directs complaint at the statute under which this prosecution is had. See Chap. 108, Acts 41st Legislature, Regular Session. Said statute penalizes him who steals chickens, turkeys, etc. Art. 1425 of our Penal Code, 1925, makes the word "Steal" to mean and include theft of property mentioned in such connection.
Complaint is made of the fact that the offense involved is punishable by imprisonment in the penitentiary, also by imprisonment in the county jail, and also by fine, and it is insisted that this fact makes the law invalid. Art. 47, P. C. provides that every offense which may — not must — be punishable by confinement in the penitentiary, is a felony, and we do not think the fact that there are alternative punishments which might have been deemed properly affixed to misdemeanor offenses, would prevent this case from being a felony. Examination of the Acts of the 41st Legislature, above referred to, makes plain the fact that by same the taking of any chicken or turkey was specifically made a felony. There is no doubt of the authority and power of the legislature to select any kind of property and make the taking of that property a felony, and in such case it is not necessary to allege the value of the property so taken. See Arts. 1420-1423 P. C., 1925. In his brief appellant cites the case of Hasley v. State,
We do not think the enactment set out in Chap. 108, supra, is unconstitutional. The reasons advanced by this court in Redding v. State,
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Addendum
As stated in our original opinion appellant was convicted for the theft of chickens, his punishment being assessed at a fine of $10. By Chap. 108, Acts 41st Leg., p. 247, the theft of chickens or other domestic fowls was denounced as a felony, regardless of whether the punishment should be by confinement in the penitentiary or jail, or by a fine only. This being true, it became necessary for the court to pass sentence upon defendant as in other felony cases. See McFadden v. State,
By Chap. 101, Acts 41st Leg., p. 236, which appears as Art. 781a in the Cumulative Annual Pocket Part of Vernon's Ann. C. C. P., State of Texas, Vol. 3, it was provided as follows: "When a person is convicted of a felony, and the punishment assessed is only a fine or a term in jail, or both, the judgment may be satisfied in the same manner as a conviction for a misdemeanor is by law satisfied."
In his motion for rehearing appellant again calls our attention to the sentence in the present case. This was overlooked in our original opinion. It is insisted by appellant that the error in the sentence demands a reversal. We can not agree with this contention, but the sentence will be reformed to read as follows: It is ordered by the court that defendant D. R. Johnson who has been adjudged to be guilty of the theft of *469 chickens, and whose punishment has been prescribed at a fine of $10, be remanded to the custody of the sheriff of Cass County, Texas, who will commit him forthwith to jail until such fine and costs are paid or otherwise satisfied in the same manner as a conviction for misdemeanor is by law satisfied, and execution may issue against the property of said defendant for the amount of such fine and costs.
It appears from the record that on the same night the chickens in question were stolen a house belonging to the owner of the chickens was burglarized and quite a quantity of property taken therefrom; that before appellant was tried for the theft of the chickens he had entered a plea of guilty to burglarizing the house. Appellant complained because the court refused to instruct a verdict of not guilty upon the present trial, the request therefor being predicated upon the claim that the theft of the chickens was a part of the same transaction in which the burglary of the house occurred. The court properly declined to give such instruction. The chickens were not in the residence, but in the chicken house some distance therefrom, and even if they had been in the residence, there would be no merit in appellant's contention. A party may be prosecuted and convicted, if the evidence justifies it, for not only the burglary of a house, but also for the theft of property taken therefrom as a result of the burglary. The offense of burglary is complete upon the breaking and entry with intent to steal although no theft be actually committed. See Branch's Ann. Tex. P. C., Sec. 2358; Howard v. State, 8 Texas App., 447 Clark v. State, 59 Tex.Crim. Rep.,
The sentence having been reformed to comply with the verdict and judgment, appellant's motion for rehearing will be overruled.
Reformed and overruled.