Rose v. StateRose v. State
- Reporters:
- , ,
- Before:
- Davidson
This prosecution and conviction was for a misdemeanor theft, the punishment being assessed at $25 fine and two days in the county jail. The court gave the following charge: “You are further instructed the fraudulent taking in order to constitute theft, need not be thе talcing from the actual possession of the owner, but if taken without his consent when not in his actual custody with the intent to deprive him of the value thereof and to appropriate it to the use and benefit of the person taking would constitutе theft.”
This is an enunciation of a correct rule of law. The testimony shows that the alleged owner left his poeketbook in his pants’ pocket in that part of the house where appellant was at work, going off forgetting it; or rather, perhaps to be more correct about the statement, it was left in-the pockеt of a pair of pants which he had left at the place where appellant was at work, to be repaired, or for some work to be done on thеm. The owner subsequently put on his pants and went out in town and missed his poeketbook, whiсh contained about $5 in money and a drink check on the Buelchorn Saloon; he went back to the place and made inquiry for his property. Appellant denied any knowledge of it and a policeman was informed of the circumstances and a description of the property given; among other things a descriрtion of the drink check that was in the poeketbook when missed. The policeman went to the Buckhorn Saloon and inquired if anyone had recently paid in at that place a drink check. Being informed in the affirmative, the bartender plaсed before him the drink ticket that appellant had paid him, with several other drink tiсkets that he had on hand. This drink check was secured and identified by the owner as his property. The poeketbook and money were not recovered.
Under thеse circumstances, we think this charge was correct. The court may have еven gone further and informed the jury that if the owner had left his pants at the place in question, containing the poeketbook with $5 in money and the drink check, and if aрpellant had found and taken from the pants’ pocket said poeketbоok with its contents, without the consent of the owner, the taking would be fraudulent and would *156 authorize a conviction. It is not necessary always, that the property shall bе in the actual personal possession of the owner. A familiar illustration of this рroposition is, that cattle and horses running on their accustomed range, arе in the possession of the owner, as is lost property. We are not discussing a case where the title to the property is in possession of one party аnd the property held or controlled by another. Appellant moved in arrеst of judgment, the contention being that at most the drink check alone was found and trаced into his possession; and this being insufficiently described in the indictment, would not authorize the conviction of appellant for the theft of the money, or his conviction at all. For the purposes of this case, if it be conceded that the drink check was insufficiently described (see Patrick v. State, 50 Texas Crim. Rep., 496; 98 S. W. Rep., 840; and Wade v. State, 35 Texas Crim. Rep., 170; 32 S. W. Rep., 772), yet, if appellant was fоund in possession of the check, and this was shown without its even being alleged in the indictmеnt, it might be sufficient to establish, under the circumstances in this record, that appellаnt had taken the pocket-book and all of its contents, and there is no question that the money was sufficiently described. If the drink check was traced to appellant’s possession immediately after its loss, it would be very clear and cogеnt evidence of the fact that he took the poeketbook and all оf its contents, for the check was in the poeketbook. There can be no question here that if appellant stole the drink check that he stole the poeketbook and all of its contents.
As the case is presented, we fail to find any such error as^ would require a reversal of the judgment and it is therefore affirmed.
Affirmed.
Henderson, Judge, absent.
[Motion for rehearing overruled without written opinion.—Reporter.]