Kersh v. State

77 S.W. 790, 45 Tex. Crim. 451, 1903 Tex. Crim. App. LEXIS 202

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 1903
• Docket: No. 2795.
• Status: Published

Opinion

BROOKS, Judge.

Appellant was convicted of theft of property, under the value of $50, and his punishment assessed at a fine of $1 and ten days confinement in the county jail.

The Assistant Attorney-General moves to dismiss the appeal on account of an alleged defective recognizance. In our opinion the recognizance is in accord with article 887, Code Crim. Proc.

The .property appellant is charged with stealing was six railroad tickets, of the value of five cents each, the same being the corporeal personal property of J. E. Burton. The undisputed proof shows that the alleged stolen tickets were the property of the Houston East & West Texas Railway Company; but the evidence establishes the fact that J. E. Burton had the actual care, management and control of said tickets, as agent of said company. Under this state of facts it was proper for the indictment to allege the tickets to be the property of J. E. Burton. Bailey v. State, 18 Texas Crim. App., 426; Frazier v. State, 18 Texas Crim. App., 434; Littleton v. State, 20 Texas Crim. App., 168.

Appellant further insists that Pickard had the management and control of said tickets. The evidence shows Pickard was the mere servant and temporary employe of Burton. Under this state of facts it would not be necessary for the indictment to allege the possession in Pickard. Emerson v. State, 33 Texas Crim. Rep., 89; Graves v. State, 42 S. W. Rep., 300.

Appellant further contends there is a variance between the. allegations in the indictment and the proof, in this: that the indictment alleges “six tickets of the value of five cents each,” whereas the proof only shows five tickets were taken of the value of one-fourth of a cent each. This is not a variance. The State is not bound to prove the exact number or value of the articles alleged in the indictment; but may prove a less number or a less value. Ho error appearing in the record, the judgment is affirmed.

Affirmed.