Edwards v. State

286 S.W.2d 157, 162 Tex. Crim. 390, 1955 Tex. Crim. App. LEXIS 1662

Opinions

MORRISON, Presiding Judge.

The offense is felony theft; the punishment, 2 years.

According to the testimony of the appellant’s co-principal and the appellant’s confession, the body of Mrs. Mary Rose was brought to the funeral home where appellant was employed, for embalming, and in the course of disrobing the body a cloth container with a large amount of money was found pinned inside the brassiere. The appellant and Guerra, his co-worker, divided the money among themselves.

The appellant, testifying in his own defense, denied that his confession had been voluntary, admitted that he had received some money from Guerra, but denied that he knew at the time Guerra gave it to him that it had come from the body of the deceased.

The jury resolved this conflict in the evidence against the appellant, and the evidence is sufficient to support their verdict.

The sole question presented for review is the alleged variance between the indictment and the evidence adduced. The indictment alleged the ownership of the money to be in the estate of Mary E. Rose, deceased. The appellant does not question the correctness of this allegation. The indictment alleged the possession to be in W. C. Shandley as one of the heirs of the estate of Mary E. Rose, deceased. The appellant contends that possession should have been alleged to be in A. C. Gilmore, the executor of the estate of Mrs. Rose. At the time of the theft, it was not known by anyone, so far as this record reveals, that A. C. Gilmore had been named executor of the estate of Mary E. Rose, deceased. The will was not opened and read until some time after the theft. W. C. Shandley was Mrs. Rose’s son and heir and was there on the ground asserting ownership and possession over her personal belongings. The very next morning all her other possessions, except the money which had been stolen, were delivered to him. His sister, the only other heir, was in California. When the money was finally recovered by W. C. Shandley, he retained it as a part of his share of the estate. Though it would have been proper to have alleged the possession to be in Gilmore or in Shandley and his sister, we have concluded that the peculiar facts in this case support the allegation that possession was in Shandley alone.

In the case relied upon by the appellant, the indictment charged possession to be in one party, while the proof showed that another party was actually in physical possession of the property which was stolen. The possession in the case at bar was constructive, but Shandley appears to be more nearly in actual possession than anyone else. It was he who demanded the return of the money, and he whc retained it once it was returned. It was he who reported the matter to the district attorney who drew the indictment.

Finding no reversible error, the judgmtnt of the trial court is affirmed.