No. 814. | Tex. Crim. App. | Nov 13, 1895
Appellant was convicted of felonious theft, and given five years in the penitentiary. The court charged the jury: "If, from the evidence, you are satisfied beyond a reasonable doubt that defendant * * * fraudulently took from the possession of Charles Hanson the property described in the indictment, * * * then you will find the defendant guilty of theft of personal property of the value of twenty dollars or over, and so say by your verdict. * * *" It is contended that this charge is upon the weight of the evidence; that the court assumed the value of the stolen property to have been conclusively *206 proved, and did not leave the determination of this issue to the jury. This position is not tenable. All the stolen property was inclosed in a sealed envelope, and consisted in part of one $20 gold piece, one 50-cent silver piece, one 25-cent silver piece, United States coin, two $10 bills, one $5 bill, and one $2 bill, "lawful current money of the United States." Proof of the taking of this amount of money was necessarily theft of property of more than $20 in value. As matter of law, the coin taken was worth more than $20, because such value is so fixed by act of Congress. Menear v. State, 30 Tex.Crim. App., 475. A draft for $503.05 was also stolen. Again, there was no issue or contest as to the value of the property taken, and this was shown to be about $550. There was no question of this fact. When the facts are admitted to be true, or are placed beyond any doubt without contest, we can see no reason why the court may not so assume, without infringing the rule inhibiting a charge upon the weight of the evidence. But this would not be so if there was an issue as to any such fact, and the court must then refrain from the assumption. To illustrate, on a trial for homicide, where it is proved by both sides, or it is not controverted, that deceased was killed, but the issue is as to the degree of culpability or identity of the slayer, it would not constitute a charge on the weight of the evidence for the court to assume the death of the deceased; but it would be if the court assumed the identity of the accused, or any degree of his culpability, as the issue might be, the plea on the trial being not guilty. The charge as given is not upon the weight of the evidence, under the facts of this case. Elizando v. State, 31 Tex.Crim. Rep.. We find no error in the record, and the judgment is affirmed.
Affirmed.