141 S.W.2d 620 | Tex. Crim. App. | 1940
Lead Opinion
Appellant was convicted in the County Court of Wichita County upon complaint and information charging theft of three suits of clothes, each of the value of more than Five Dollars, and by a jury was assessed a penalty of Ten Dollars and ten days in jail in each of the three cases. From a judgment entered on the jury’s verdict, appeal is taken to this court.
The principal question presented in the appeal is whether or not the acts of appellant constituted theft or the taking of the suits for the purpose of pawning them with intention of returning them when he had paid the loan. This question arises on the following facts:
Appellant was working at the Orchid Shop in the City of Wichita Falls where he had been employed as a porter for several years. On Saturday at the close of the week he was fired and on the' following Monday he went to the owner of the shop and begged to be reinstated. He told the owner that he had taken three suits of clothes on three different dates and wanted to make the promise to pay the suits out of the pawn shop where he had placed them. The evident purpose of this interview was to get himself reinstated in the job. He had been paid a salary of $16.00 a week, but had engaged much in the very entertaining but unprofitable occupation to which he had inherited a tendency, that of “shooting craps.”
On the subject the appellant submitted several requested charges, one of which was given as follows: “If you find and believe from the evidence that the defendant did not intend at the time he took the property to permanently appropriate it, but only obtained it for a temporary use, that is, that he took the property for the purpose of using it as security on which to obtain a loan and intended to later redeem it and return it to the owner, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict, not guilty.”
The other charges requested we consider as mere different forms of asking for the same thing. The foregoing is not approved as proper, but certainly is sufficient to instruct the jury on appellant’s theory of the case.
In his charge the court submitted three cases to the jury and furnished them a proper form on which to return their verdict either for or against the appellant. At first they re
By bill of exception number six the appellant complains of the following paragraph of the court’s charge: “You are further instructed that if from the evidence you believe beyond a reasonable doubt that the defendant is guilty under the two preceding paragraphs, but you have a reasonable doubt as to the value of the property taken being $5.00 or more, then you must give the defendant the benefit of such doubt and in such case if you find him guilty, his punishment shall be assessed in any sum not to exceed $200.00.”
The giving of this charge is assigned as error. We doubt if it is warranted by the facts of the case as all the evidence shows each suit in question to be worth more than $5.00 and that fact is not disputed; however, it could only be favorable to appellant and by no process of reasoning can it be contended that it is harmful to him.
Finding no error in the trial of the case, the judgment is affirmed.
Rehearing
ON MOTION FOR REHEARING.
In his motion for rehearing appellant criticises that part of the trial court’s charge quoted in our original opinion and the disposition made of the complaint relative thereto.
The court had told the jury in paragraph two of the charge that the punishment for theft of property under the value of five dollars was by fine not to exceed two hundred dollars. In the charge complained of the court was endeavoring to protect appellant in an application of the law theretofore stated. If appellant thought the charge fell short of doing this he should not only have excepted thereto but — this being a misdemeanor — should also have presented a special charge correcting what he thought to be an error. Not having done this the question is not before us for review. See Teem v. State, 79
The motion for rehearing is overruled.