Jackson v. State

79 S.W. 521, 47 Tex. Crim. 85, 1904 Tex. Crim. App. LEXIS 229

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1904
• Docket: No. 3007.
• Status: Published

Opinions

DAVIDSON, Presiding Judge.

Appellant was convicted of theft, his punishment being assessed at a fine of $25 and three months confinement in the county jail.

The information contains two counts: the first, charging theft of a pair of pants from possession of Pete Lucas; and the other from Pete Lucas and Mrs. Nannie Lucas. The evidence shows that Pete Lucas was a minor about 18 years of age, and the owner of. the pants, living with his father and mother. He testified the pants were his, and under his exclusive care, control and management. It is contended that, under this state of case, the ownership could not be legally in the minor, but must be alleged in the parent. The ownership could have been alleged to either. Wright v. State, 35 Texas Crim. Rep., 470. Hnder the evidence for the State the case was clearly made out and the charge was sufficient in this respect. Appellant accounted for his possession by stating that Clarence Wilkins, the main State’s witness, wanted him to go to Dallas with him, and that he (defendant) replied, “I have no pants fit to wear.” That Clarence then said, “I will let you have pome.” Defendant replied, “I could not wear your knee-breeches,” Clarence then said, “I have some long breeches.” He then went, secured, brought and gave the pants to appellant, who wore them to Dallas. Clarence did not tell him where he got the pants until they reached Dallas. Appellant requested the court, in substance, by written instruction, to charge the jury in regard to this state of case; and that if the facts stated were believed by the jury to be true, or there was a reasonable doubt as to their truthfulness they should acquit. The instruction was refused. It should have been given. If appellant was not in some way connected with the original taking, so as to constitute him a principal, he would not be guilty of the theft, even though he should have received the property knowing it to have been stolen. Under this statement, if the jury believe appellant came in possession of the property as stated by him, he could not be guilty of the theft. Because the court refused to instruct the jury as requested-by appellant, on this phase of the testimony, the judgment is reversed and the cause remanded.

Reversed and remanded.