Rives v. State

73 S.W.2d 99, 126 Tex. Crim. 487, 1934 Tex. Crim. App. LEXIS 743

• Court: Court of Criminal Appeals of Texas
• Decided: May 2, 1934
• Docket: No. 16639.
• Status: Published

Opinions

MORROW, Presiding Judge. —

The offense is theft; a misdemeanor; penalty assessed at confinement in the county jail for thirty days.

There is evidence supporting the State’s theory that 110 cedar posts, each of the value of ten cents, were stolen from the premises of L. 0. Gresham, the injured party; that there was a conspiracy between Ray Gártrell and the appellant to steal the posts; that appellant agreed to aid in disposing of them and in dividing the proceeds therefrom. The evidence, if believed by the jury, is deemed such as to bring the appellant within the purview of the law of theft. However, he contends that his offense, if any, was not theft but that of receiving stolen property.

The condition of the pleading upon which the prosecution is based renders it unnecessary to go into details touching the evidence. The information is . correctly drawn, but the com plaint upon which the information is founded is faulty in that it omits an averment made essential by the statute, namely, that it fails to state that the property “was taken with the intent to deprive the owner of the value of the same.” See Peralto v. State, 17 Texas App., 578; and other cases collated in Vernon’s Ann. Texas P. C., 1925, vol. 3, p. 130, art. 1410, note 18; Moore v. State, 166 S. W., 1153; Martini v. State, 32 S. W. (2d) 654.

Due to the fault in the pleading it becomes the duty of the court to order a reversal of the judgment of conviction and the dismissal of the prosecution, which is accordingly done.

Reversed and prosecution dismissed.