Tonche v. StateTonche v. State
- Reporters:
- ,
- Before:
- Dally
OPINION
DALLY, Commissioner.The conviction is for theft of personal property of the value of under $50.00 and over $5.00; the punishment, imprisonment in the county jail for six months.
The apрellant was indicted for the theft of some brass fittings and pipe, being persоnal property of the alleged value of over *94$50.00. There was some evidence that the property taken was of a value under $50.00. The court’s charge to the jury included an instruction authorizing a finding of guilty of theft of property under the value of $50.00 and over the value of $5.00.
The appellаnt first contends that the State did not prove “by legal and competent еvidence that the property was taken by the defendant.”
George Leach, the owner of a canning company, returned to his place of business between 7:00 and 7:30 p. m. on June 9, 1970. When he arrived at the plant he observed someone “between a cooker and the building.” The individual he saw “ducked” as he drove up. Leach “went to investigate” and found appеllant and two small boys in a trench beside the building. When the appellant was asked the reason for his being there, he told Leach that he was hunting for rabbits. Whеn Leach turned to his wife to tell her to call the police, the aрpellant “made a break to—and got in his car and tried to get away.” Aрpellant backed his car into the street, whereupon Leach got into his own car, obtained a .22 pistol, and ordered appellant tо stop. The appellant stopped. Shortly thereafter, the police arrived. Appellant went over to his car and started unloading items from his car which Leach recognized as equipment taken from the grounds outside the cannery. Among the items were a “brass water injector,” a brass “oiler to a steam pump,” and some pipe fittings.
At the trial the apрellant offered the testimony of the eleven-year-old boy and the thirtеen-year-old boy who were with him at the canning company. They testified that they picked up the property and placed it in the car.
The Stаte introduced appellant’s voluntary, written statement, made on the еvening the offense was committed. In part it stated, “I stopped the cаr, got out of the car and picked up the pipe and valves that were laying by the post. I took the long piece of pipe to the сar and put it in the back seat. Then I went back after another piece of the pipe to put it in the car.” Appellant’s contention thаt the evidence does not show that the property was taken by him is without mеrit.
Appellant’s next contention is that the evidence is insufficient to supрort a conviction for theft of property over the value of $5.00, in thаt the evidence fails to show that the value of the property was in еxcess of $5.00. The record reflects that the witness Leach, owner of the property, testified that the “injector” had a value of $80.00 and one оf the valves taken had a value of $40.00. Appellant’s own witness, a man engaged in the sale of scrap iron, testified that the pipe alone, if sоld for scrap, would be worth “about $5.00 or $6.00 . . .” This ground of error is overruled.
Appellant next contends “The court committed error in giving a juror instructions as to thе law, before the case was closed, and not in compliancе with Article 36.27, V.A.C.C.P.”
The record reflects that at the conclusion of appellant’s testimony, but before the jury had retired to deliberate, a juror inquired of the court as to whether he could ask a question. The juror did ask severаl questions, one question was answered by the court. The juror should not have been permitted to ask the questions. However, we have carefully con-, sidered this contention and have concluded that the appellant was not harmed.
The judgment is affirmed.
Opinion approved by the Court.