Dukes v. State

Court of Appeals of Texas

Dukes v. State

2 S.W. 590, 22 Tex. Ct. App. 192, 1886 Tex. Crim. App. LEXIS 243

CourtCourt of Appeals of Texas

DecidedNovember 10, 1886

DocketNo. 2386

StatusPublished

Cited by2 cases

This text of 2 S.W. 590 (Dukes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dukes v. State, 2 S.W. 590, 22 Tex. Ct. App. 192, 1886 Tex. Crim. App. LEXIS 243 (Tex. Ct. App. 1886).

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Opinion

Willson, Judge.

In theft from the person, as in other thefts, the offense is complete when the property has gone into the possession of the thief. It is not essential to the completion of the offense that the property be carried away by the thief. (Penal Code, Art. 763; Flynn v. The State, 42 Texas, 301.) A taking of the property includes a carrying away thereof within the meaning of the Statute. If the property was taken so suddenly as not to allow time to make resistance, it was also carried away so suddenly as not to allow time to make resistance. Such we hold to be the meaning and intent of the Statute, construing its several provisions together. We do not perceive that the court committed any error in its charge to'the jury.

With reference to the indictment, it is not objectionable in the particular that it does not allege that the property was taken from the owner with the intent to deprive said owner of the value of the same, etc. In this respect the indictment is clearly sufficient. In another respect, however, the' indictment, in our opinion, is bad. It does not sufficiently describe the property alleged to have been stolen. It merely alleges that defendant took “eight dollars,” the same being the corporeal personal property of John Schell. It does not allege the kind of dollars, nor that they were money. Even under the liberal provision of our Code with respect to the description of property, this indictment cannot be held good. (Code of Criminal Procedure, Art. 427; Bryant v. The State, 16 Texas Ct. App., 144; Merwin v. The People, 26 Mich., 298.) Because of this defect in the indictment the judgment is reversed and the prosecution dismissed.

Beversed and dismissed.

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Willson, Judge.

In theft from the person, as in other thefts, the offense is complete when the property has gone into the possession of the thief. It is not essential to the completion of the offense that the property be carried away by the thief. (Penal Code, Art. 763; Flynn v. The State, 42 Texas, 301.) A taking of the property includes a carrying away thereof within the meaning of the Statute. If the property was taken so suddenly as not to allow time to make resistance, it was also carried away so suddenly as not to allow time to make resistance. Such we hold to be the meaning and intent of the Statute, construing its several provisions together. We do not perceive that the court committed any error in its charge to'the jury.

With reference to the indictment, it is not objectionable in the particular that it does not allege that the property was taken from the owner with the intent to deprive said owner of the value of the same, etc. In this respect the indictment is clearly sufficient. In another respect, however, the' indictment, in our opinion, is bad. It does not sufficiently describe the property alleged to have been stolen. It merely alleges that defendant took “eight dollars,” the same being the corporeal personal property of John Schell. It does not allege the kind of dollars, nor that they were money. Even under the liberal provision of our Code with respect to the description of property, this indictment cannot be held good. (Code of Criminal Procedure, Art. 427; Bryant v. The State, 16 Texas Ct. App., 144; Merwin v. The People, 26 Mich., 298.) Because of this defect in the indictment the judgment is reversed and the prosecution dismissed.

Beversed and dismissed.

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2 S.W. 590, 22 Tex. Ct. App. 192, 1886 Tex. Crim. App. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dukes-v-state-texapp-1886.

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