Dow v. State

12 Tex. Ct. App. 343

• Court: Court of Appeals of Texas
• Decided: July 1, 1882
• Status: Published

Opinion

White, P. J.

It is well settled in this State that under an ordinary indictment for theft a conviction may be had on proof which shows that the taking, though with the owner’s consent, was obtained by false pretext or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker. Penal Code, art. 727; White v. State, 11 Texas, 769; Smith v. State, 35 Texas, 738; Maddox v. State, 41 Texas, 205; Reed v. State, 8 Texas Ct. App. 40; Spinks v. State, 8 Texas Ct. App. 125; Jones v. State, 8 Texas Ct. App. 648; Hudson v. State, 10 Texas Ct. App. 215.

But it is also equally as well settled that, in order to sustain a prosecution for theft when the taking was originally lawful, the proof must show that the taking was obtained by some false pretext or with intent to deprive the owner of the value of the property and appropriate it to the use and benefit of the taker. Hornbeck v. State, 10 Texas Ct. App. 408. The intent is the gist of the, offense, and such intent must exist at the time of the taking; for if the intent did not exist at the time of taking no subsequent felonious intention will render the previous taking felonious. Billiard v. State, 30 Texas, 368; Johnson v. State, 1 Texas Ct. App. 118.

Whilst there was no error in the portion of the charge of the court which is complained of,— the same being in harmony with the rules of law above enunciated,—we are of opinion that the facts shown in evidence do not establish a fraudulent intent at the time appellant obtained possession of the horse, nor do they establish the fact that the horse was obtained by means of a false pretext.

Because the evidence is insufficient to support the verdict and judgment, the judgment is reversed and the cause remanded..

Reversed and remanded.