Stubblefield v. State

135 S.W.2d 102, 138 Tex. Crim. 289, 1939 Tex. Crim. App. LEXIS 647

• Court: Court of Criminal Appeals of Texas
• Decided: November 22, 1939
• Docket: No. 20,596.
• Status: Published

Opinions

CHRISTIAN, Judge.

The offense is theft of an automobile; the punishment, confinement in the penitentiary for two years and eight months.

Appellant and Bonnie Stevens went to a dance hall, pushed an automobile belonging to Mrs. Gladys Crabtree down the highway and stripped it of several accessories, including the horns and a radio. According to the testimony of the State, appellant sold the horns which had been taken from the stolen car to Luther Blackstock for two dollars, which he (Black-stock) placed on his “pickup” car. The horns were recovered and identified by Mrs. Crabtree. Bonnie Stevens, the accomplice witness, testified for the State on his direct-examination that he and appellant stole the car. On cross-examination he said: “We did not intend to take the car off and keep it. We intended to take these things off of it and leave it there. That is what we said, that we didn’t want anything but the things on it. Marvin (appellant) said he could sell the horns. I never did intend to take the car off and keep the whole car.” Appellant did not testify.

There is nothing in the record to show that the car when found could only be used as a vehicle by the assembling of the missing parts, or others similar thereto. On the contrary, it is inferable that the accessories taken from the car did not impair it to the extent that it could not be used in the condition in which it was left. This being true, the holding in the case of Escobedo v. State, 225 S. W. 377, does not militate against the conclusion that appellant was entitled to a charge that Jf he took the car with the intent to strip certain accessories therefrom and not to permanently appropriate the car he should be acquitted. See also Hermosia v. State, 6 S. W. (2d) 767. Under the testimony of the accomplice witness, we are gravely doubtful as to the sufficiency of the evidence to support a conviction for theft of the automobile. At all events, we think appellant’s exception to the charge for its failure to instruct the jury relative to the issue raised by the testimony of the accomplice witness to the effect that there was no intention to steal the car and appropriate it, but that the parties merely intended to remove the accessories that they did take should have been responded to. It has long been the rule in this court that in a case in which the evidence raises the defensive theory in an affirmative way it is incumbent upon the court to so submit it. Escobedo v. State, supra.

The judgment is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court 'of Criminal Appeals and approved by the Court.