41 Tex. 205 | Tex. | 1874
Indictment against appellant for theft of a buggy and two mules. On the trial of this cause the State proved that the accused obtained possession of the property charged to have been stolen by hiring. The witness was then asked to detail the statements and representations made at the time by defendant as to his intentions, to which the counsel for defendant objected, because there was no allegation in the indictment to justify such proof, or any other evidence necessary to constitute .theft under art. 2385, Pas. Big. The court overruled the objection and admitted the evidence.
The indictment is in the usual form for theft, charging the taking to be fraudulent and without the consent of the owner. The point of objection to the evidence was that the indictment does not aver that the taking, though originally lawful, was obtained by some false pretext, or with intent to deprive the owner of the value of his property, &e., as under art. 2385. The books abound in subtile and refined distinctions between larceny and trespass, and between larceny and swindling, or the obtaining of goods under false pretenses under statutory enactments. The chapter on theft, as found in the code, clearly defines the offense, and removes all doubt as to what acts shall constitute theft. The taking, as defined in art. 2385, does not describe a different offense from that defined by art. 2381, but only differs in its facts and circumstances, which are matters of proof, and need not be averred in the indictment. (White v. The State, 11 Tex., 769; Smith v. The
For the same reasons the court did not err in overruling defendant’s objection to the testimony offered by the prosecution to show that the accused had sold, the property and appropriated the same to his own use. It was necessary to prove the conversion, and the evidence must have been offered for that purpose, in connection with other facts tending to the same conclusion. Another objection
There is nothing in the charge of the court of which the defendant can justly complain, nor was there any error in refusing the instructions asked by him. The verdict is supported by the evidence, and the judgment is affirmed.
Aeeirmed.