Allen v. State

• Decision Date: 21 May 1924
• Docket Number: (No. 8013.)
• Citation: Allen v. State, 262 S.W. 502, 97 Tex.Cr.R. 467 (Tex. Crim. App. 1924)
• Parties: ALLEN v. STATE.
• Court: Texas Court of Criminal Appeals

262 S.W. 502

ALLEN v. STATE.

(No. 8013.)

Court of Criminal Appeals of Texas.

May 21, 1924.

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

W. H. Allen was convicted of theft, and he appeals. Reversed and dismissed.

Stanford, Sanders & West, of Canton, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

In article 1329 of the Penal Code "theft" is thus defined:

"`Theft' is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking."

In drawing the indictment in the present case, the pleader, instead of using the language embraced in the statute, has charged that the appellant did unlawfully and fraudulently "obtain" the property without the consent of the owner. Founded upon the difference in the language used in the indictment from that used in the statute, a motion to quash the indictment was made. Complaint of the failure to sustain it is presented for review.

Article 10 of the Penal Code reads thus:

"Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed."

The word "take" is used in the statute; the word "obtain" is used in the indictment. While they may in a sense be interchangeable, it is believed that they are not synonymous in the sense that one may be substituted for the other in charging theft under the particular article of the statute upon which this prosecution is founded. "Taking" as embraced in article 1329, supra, has received judicial interpretation a number of times. McCoy v. State, 56 Tex. Cr. R. 551, 120 S. W. 858; Michie's Ency. Digest of Tex. Rep. of Crim. Cases, vol. 5, p. 208; Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869. What is meant by "fraudulent taking," as the words are used in the statute under consideration, is so well settled that their use in the indictment for theft under article 1329, supra, leaves no room for inquiry touching their meaning. It is not essential that an indictment be embraced in the language of the statute; nor is it always sufficient to do so, but where the language of the statute is plain and the meaning well understood, not only from the face of the statute, but from its previous judicial interpretation, a departure from the statutory language ought not to be practiced. See Sparks v. State, 76 Tex. Cr. R. 263, 174 S. W. 352. The substitution for the language of the statute, the significance of which is well understood, of language susceptible of a different interpretation has been condemned, and in some instances has resulted in a reversal. It has, in all cases, a tendency to confusion at the trial and to increase the number of appeals. Edgerton v. State (Tex. Cr. App.) 70 S. W. 90; Hardeman v. State, 16 Tex. App. 1, 49 Am. Rep. 821.

Referring to article 10, P. C. directing that, in the absence of a statute specially defining their meaning, words are to be construed in the sense in which they are understood in common language the word "take," as applied to the offense of theft, in common language, does not have the same significance as the word "obtain." The word "obtain" embraces many ways of acquiring property not suggested by the word "take." This uncertainty is emphasized by reference to other statutes of this state which are designed to punish those who acquire property fraudulently. Some of these statutes denounce the fraudulent acquisition of property as theft, notwithstanding the property was taken with the consent of the owner. This occurs, for example, where fraudulent means are used to induce the owner to surrender the possession or where the intent of the owner was but to part with the possession and not with the title to the property. See article 1332 and article 1338, P. C.; also Williams v. State, 30 Tex. App. 153, 16 S. W. 760, and other cases listed in Michie's Ency. Digest of Tex. Rep. of Crim. Cases, vol. 5, p. 209; also Vernon's Tex. Crim. Stat. vol. 1, p. 869. See, also, statute on embezzlement (title 17, c. 17, P. C.) and statute denouncing the offense of swindling where the "acquisition of property" is used in describing the offense (title 17, c. 18, P. C.).

The indictment, returned in February, 1922, charges the theft of property on the 20th of August, 1921. Circumstances are relied upon to identify the appellant as the taker of the property. Winger, the owner of an automobile, had parked it on a street in the city of Fort Worth. It was taken by some one, and was next seen by him some time in the following October. About the 18th of October, two persons were observed riding in an automobile upon the public road in Van Zandt county, near the town of Grand Saline. The car was a Buick roadster and had been seen in Grand Saline several times. Two officers intercepted the car, and the occupants got out of it and ran away. One of the parties was arrested near the place; the other escaped. The car, it seems, was afterwards identified by Winger as the one he had lost. The parties...