Williams v. StateWilliams v. State
- Reporters:
- , ,
- Before:
- Lattimore
Lead Opinion
Appellant was convicted in the District Court of Rockwall County óf fеlony theft, and his punishment fixed at three years in the penitentiary.
The indictment charged theft of 78 chickens. The owner swore to the loss of 89 chickens on the night of the alleged theft, and said they wеre taken from his chicken house in Rockwall County. Forty of said stolen birds were recovered the next day in Dallas in a produce house, and an employe of the house said he had been dressing chickens out of the same load brought in that morning and had dressed a number with bands on their wings, etc. Proof of the finding of the accused in possession of part of the property alleged to have been stolen, will support a conviction fоr taking the whole. Berry v. State, 223 S. W. Rep. 213. The proof showing the loss of 89 chickens the same night, and that appellant was . in possession оf a load of chickens the next morning, 40 of which were identified аnd a number of which had already been dressed and identification made impossible, would seem sufficient to support a conviction for taking the entire number so lost. The allegation in the indictment being of the taking of 78 chickens, proof of loss embraсing 89 chickens would seem to dispose of the contention оf appellant that the State, having alleged the value in thе aggregate, could only sustain same by proof of the taking of all of the property mentioned.
No exceptions appear to any evidence upon the trial, and nonе are in the record save those taken to the court’s сharge, and to the refusal of a peremptory instruction оf not guilty. The .court seems to have changed his charge as оriginally prepared, or to have given special charges, to meet the exceptions pre *590 sented thereto, and the refusal of the requested peremptory chargе was not erroneous.
We are not in accord with the complaint directed at the failure to prove the market vаlue. The owner of the chickens testified that there was a mаrket value for pedigreed chickens, such as his, in Rockwall County, and that it was $10.00 each. The proof showing that 20 of such pedigrеed chickens were taken, would suffice to make the offense a felony.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Addendum
ON MOTION FOR REHEARING.
LATTIMORE, Judge.Aрpellant raises substantially the same matters in his motion’ that werе passed upon by us in our original opinion. We gave careful consideration to each point raised before thе original opinion was handed down and see no reason to change our views.
Appellant does, however, complain that we did not consider the question raised as to the failure of the court to require the jury to find specifically that the full number of chickens charged to have been stolen were in fаct taken. In view of our conclusion that the evidence fully showed that the full number of chickens charged to have been tаken were in fact shown to have been taken, the failure of the court referred to, if in fact such complaint be well founded, would not constitute reversible error inasmuch as it could result in no injury to the appellant.
The motion for rehearing is overruled.
Overruled.