Simco v. State

Court of Appeals of Texas

Simco v. State

8 Tex. Ct. App. 406

DecidedJuly 1, 1880

StatusPublished

This text of 8 Tex. Ct. App. 406 (Simco 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.

Bluebook

Simco v. State, 8 Tex. Ct. App. 406 (Tex. Ct. App. 1880).

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Opinion

Clark, J.

The offence of embezzlement, while nearly akin to larceny, and generally regarded as of that family, is nevertheless a separate and distinct offence, and essentially variant from the latter. Theft is the fraudulent taking of personal property under certain designated circumstances, and necessarily involves the idea of an unlawful acquisition. [408]*408Embezzlement is the fraudulent conversion of similar property after its possession has been lawfully acquired. This variance in the character of the two offences led the Legislature, in the adoption of the Revised Code of Criminal Procedure, to provide expressly that in a prosecution for theft a conviction might be had for “ embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code.” Code Cr. Proc., art. 714, sect. 6. Prior to this change in the law, it was permissible to convict, under an indictment for theft, only for all unlawful acquisitions punishable by the Code. Pase. Dig., art. 8096, sect. 5.

In view of this legislation, and the difference in the two offences of theft and embezzlement, we are constrained to hold that, in a prosecution for theft occurring prior to the adoption of the Revised Code, it was error for the court to instruct the jury to convict of embezzlement, if the facts showed the commission of that offence instead of the offence of theft, and that a verdict so found is not supported by the indictment. The new provision in the Code cannot be made to act retrospectively. Callaway v. The State, 7 Texas Ct. App. 585.

The entry of the judgment, adjudging appellant guilty of theft upon a verdict finding him guilty of embezzlement, would not necessitate a reversal of the case, but only a reformation of the judgment, by this court. Pasc. Dig., art. 3208; Rev. Code Cr. Proc., art. 869.

The judgment is reversed and the cause remanded, in order that the matter may be further investigated and acted upon by the grand jury of Tarrant County.

Reversed and remanded.

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Clark, J.

The offence of embezzlement, while nearly akin to larceny, and generally regarded as of that family, is nevertheless a separate and distinct offence, and essentially variant from the latter. Theft is the fraudulent taking of personal property under certain designated circumstances, and necessarily involves the idea of an unlawful acquisition. [408]*408Embezzlement is the fraudulent conversion of similar property after its possession has been lawfully acquired. This variance in the character of the two offences led the Legislature, in the adoption of the Revised Code of Criminal Procedure, to provide expressly that in a prosecution for theft a conviction might be had for “ embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code.” Code Cr. Proc., art. 714, sect. 6. Prior to this change in the law, it was permissible to convict, under an indictment for theft, only for all unlawful acquisitions punishable by the Code. Pase. Dig., art. 8096, sect. 5.

In view of this legislation, and the difference in the two offences of theft and embezzlement, we are constrained to hold that, in a prosecution for theft occurring prior to the adoption of the Revised Code, it was error for the court to instruct the jury to convict of embezzlement, if the facts showed the commission of that offence instead of the offence of theft, and that a verdict so found is not supported by the indictment. The new provision in the Code cannot be made to act retrospectively. Callaway v. The State, 7 Texas Ct. App. 585.

The entry of the judgment, adjudging appellant guilty of theft upon a verdict finding him guilty of embezzlement, would not necessitate a reversal of the case, but only a reformation of the judgment, by this court. Pasc. Dig., art. 3208; Rev. Code Cr. Proc., art. 869.

The judgment is reversed and the cause remanded, in order that the matter may be further investigated and acted upon by the grand jury of Tarrant County.

Reversed and remanded.

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Bluebook (online)

8 Tex. Ct. App. 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simco-v-state-texapp-1880.