Bride v. State

218 S.W. 762, 86 Tex. Crim. 535, 1920 Tex. Crim. App. LEXIS 41

• Court: Court of Criminal Appeals of Texas
• Decided: January 21, 1920
• Docket: No. 5628.
• Status: Published

Opinions

LATTIMORE, Judge.

—Appellant was convicted in the District Court of Nacogdoches County, of felony theft, and his punishment fixed at six years in the penitentiary.

The indictment alleged D. L. Thomas to be the owner of the stolen goods, and the proof showed that he was a drummer traveling through the county in an automobile, selling tobaccos; and that he had on the back of his ear a sort of a box or receptacle in which he carried samples of his wares. On the night in question, Thomas parked his car near the Elks’ Club, in the town of Nacogdoches, and when he came after it later, he found it gone. The next morning he found the car in a different part of the town, and tobacco samples, stated by him to be worth $42, were gone; also a rain-coat worth $10, an auto-hood worth $7.50, and a kit of tools worth $10, were missing. Subsequently, a part of the tobacco and the rain-coat were returned to him by the sheriff.

The various questions raised by the appellant will be treated in the order in which they ar.e presented in his brief. The various theories of the defense, and also the law applicable to both felony and misdemeanor theft, were submitted to the jury.

No special charges appéar to have been requested by the appellant.

Appellant’s first contention is, that the court erred in submitting to the jury the law of felony theft. We are not in accord with this contention. Property of the value of $69.50 was taken from said car on the night in question. Proof that one accused of theft took part of the property which was lost, will support a conviction for the taking of all the property lost at the same time and place. Wilson v. State, 70 Texas Crim. Rep., 631, 158 S. W. Rep., 516; Harris v. State, 29 Texas Crim. App., 104. Nor would the fact that the articles alleged to have been stolen were actually taken one at a time from the automobile, reduce the theft to a misdemeanor, if the value of all of the articles lost on said occasion, aggregated more than $50.00. Wilson v. State, 70 Texas Crim. Rep., 631, 158 S. W. Rep., 516; Harris v. State, 29 Texas Crim. App., 104.

We also are of opinion that the allegation of ownership was met by the proof. When property alleged to have been stolen is shown to have been in the actual care, control, and management of one who holds the same as agent for another, it is sufficient to allege ownership in the agent, and proof of his care, control, and management will meet such allegation. The proof of ownership need not consist of a formal statement by the alleged owner that it was his property that was taken, but as in this case such proof may be made by the testimony of the alleged owner speaking of it as “my” property, or by the statement of how much he paid for the alleged stolen property, or in various other ways and phrases, used by one speaking of property which belongs to himself.

Appellant contends that the venue was not proven, and the conviction cannot be sustained. There seems to have been no issue as to venue in the trial court, and under our statute, we cannot sustain such contention when made for the first time here. Art. 938, Vernon’s G. G. P.

It is further alleged that the court should have charged on the law of circumstantial evidence. We find ourselves unable to agree with this contention. Appellant admitted taking the car, with the other negro, on the night in question, and told the witness Millard that he took said ear. Sam Rivers testified for the State that he saw appellant take part of the alleged stolen goods out of said ear; that some of said property was given to him, a part of which he later turned over to the sheriff, who returned it to the owner. It is well settled that either the direct testimony of an accomplice, or the confession of the accused, will take a ease out of the domain of circumstantial evidence. True, appellant did not confess to taking the articles out of the ear, hut he did confess to taking the ear; and the alleged accomplice gave direct evidence as to seeing him take therefrom the property.

Appellant filed his application for a suspended sentence, which placed in issue his general reputation, and we think the court below did not err in allowing the state, on cross-examination, to ask appellant if he had not been charged in the courts with bootlegging and petty theft. Martoni v. State, 74 Texas Crim. Rep., 90, 167 S. W. Rep., 349; Williamson v. State, 74 Texas Crim. Rep., 289, 167 S. W. Rep., 360.

The witness Millard testified to conversations with appellant, had after he had made bond subsequent to his arrest. We know of no legal reason why such statements made by the appellant while under bond, are not admissible against him.

We have caefully examined this entire record, and find no error. The judgment of-the trial court will be affirmed.

Affirmed.