37 Tex. 337 | Tex. | 1873
In October last, this appeal was dismissed for the reason that the record failed to show, in terms, that notice of appeal had been given in the court below. But the opinion was held up at the request of counsel, and no judgment in the case has been entered. Upon a reconsideration of the judgment of the lower court, we are convinced that a notice of an appeal was given, and that the transcript contains evidence of that fact, notwithstanding no formal notice was entered by the clerk in the records of the court. The judgment orders that the defendant “be securely kept in the county jail for the “ period of sixty days from this date, at the expiration of which “ time, unless otherwise directed by the Honorable the Supreme “ Court of Texas, he will be conveyed by the sheriff to the “ penitentiary.” This portion of the judgment of the court must have been founded upon a notice of an appeal, as the District Court has no authority to retain a convict in the county jail for the orders of this court, unless notice of an appeal has been formally given in that court; and we are therefore induced to treat the case as though the clerk had fully performed his duty, and entered upon the record this appeal in its proper order and form.
Theft is the fraudulent taking of property, with intent to deprive the owner of the value of the same, and to appropriate it to the use of the person taking. The taking must be a fraud upon the rights of another, and that must be an actual and intended fraud, and not a constructive or legal one. The crime of theft is not constituted by the taking, nor the fraudulent taking, but it also includes the purpose and intent to de-fraud. There must be an intentional taking without the con
In the case at bar, we think the evidence before the jury on the trial below wholly failed to prove a fraudulent or felonious intent on the part of the appellant. He is charged with the theft of a horse, which a neighbor of his had driven into his pen, as his property, and which, after a thorough examination he pronounced his, and appropriated it in the same manner as an honest man would have done with property he believed to be his. In selling the horse to Isbell, his neighbor, in payment of a debt due, with a full knowledge that it was to be kept and used in that neighborhood, he exhibited anything but a fraudulent or felonious purpose or intent. And when the prosecuting witness called on him in regard to the horse, he seems to have stated the whole truth about the animal, without any reservation, hesitation, or concealment, and told Mr. Parker that he had let Isbell have the horse, supposing it to be his, but-said if it was Parker’s he should have it. We can see no evidence of a guilty intention in these facts, and there is none in the record.
There is no objection to the charge of the court. The law which should have governed the verdict of the jury was given them in a very concise and clear manner, and had they regarded those charges as they should have done, we think the verdict would have been quite different. But we think the court erred in overruling the motion for a new trial. The discretion of
Reversed and remanded.
