Wesley v. State

73 S.W. 960, 45 Tex. Crim. 64, 1903 Tex. Crim. App. LEXIS 99

Opinion

DAVIDSOH, Presiding Judge.

Conviction for theft, the penalty assessed being one year’s confinement in the county jail.

The indictment is questioned by motion in arrest of judgment because it does not sufficiently negative the consent of the owners. It is charged that the ownership was in the firm of McMullen & Marshall, consisting of T. H. McMullen and Hed Marshall. The proof shows there, were two T. H. McMullens,■ and the McMullen mentioned in the indictment under the evidence was “Jr.,” and that by reason of this fact there is a variance; and also that the general allegation that the property was taken without the consent of the owners is not sufficient; that the indictment should have specifically negatived the consent of each owner. The indictment is sufficient with reference to the allegation of want of consent of the owners. Williams v. State, 19 Texas Crim. App., 276. There is no variance by reason of the fact that the alleged owner was “Jr.,” and not “Sr.” Windom v. State, 6 Texas Ct. Rep., 908.

With reference to those matters which pertain to the facts or grow out of supposed errors committed by the court in the charge, the evidence can not be considered. The statement of facts is in the same condition as in Hess v. State, 30 Texas Crim. App., 437. And see, also, Morse v. State, 39 Texas Crim. Rep., 566; Wilson v. State, 34 Texas Crim. Rep., 355.

As the record is presented, no error is shown, and the judgment is affirmed.

Affirmed.