Campos v. State

• Decision Date: 06 November 1918
• Docket Number: (No. 5177.)
• Citation: 207 S.W. 931
• Parties: CAMPOS v. STATE.
• Court: Texas Court of Criminal Appeals

207 S.W. 931

CAMPOS v. STATE.

(No. 5177.)

Court of Criminal Appeals of Texas.

November 6, 1918.

Rehearing Denied January 15, 1919.

Appeal from Bexar County Court; Nelson Lytle, Judge.

S. C. Campos was convicted of misdemeanor theft, and appeals. Affirmed.

Diedrich A. Meyer and W. C. Linden, both of San Antonio, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of misdemeanor theft, and his punishment fixed at three months' confinement in the county jail.

He was an employé of one Dielmann, who sent him to deliver a five-gallon can of oil to the Sherwin-Williams paint store, giving him the bill for the oil against one Roeglein for 90 cents. The purchaser of the oil was a customer of the paint store, and the contention of the state is that when the bill was presented one Connor, a clerk in the store, was told by another employé to pay the bill, stating, "Here is a $9.00 C. O. D. order." Whereupon Connor paid the appellant $9, whereas the bill called for but 90 cents. Appellant accounted to his employer for the 90 cents, and his conviction is based upon the proposition that he was guilty of theft of the remainder of the $9, namely $8.10. Complaint was not made by Connor until two days after the transaction, when he called on appellant's employer and claimed that he had by mistake paid $9 to appellant instead of 90 cents. Appellant denied that he received the amount, claiming that he received but $1, and gave Connor 10 cents in change. He said that on his return he gave his employer the dollar and received 10 cents in change. His employer testified that the appellant did on his return give him the dollar, receiving 10 cents in change. Appellant claimed that he had no further money, and that he had gotten special permission subsequently on the same day to obtain 25 cents on his wages for the purpose of getting his lunch. He was corroborated by his employer with reference to obtaining this 25 cents on the statement that he wanted it for the purpose named. He bore a good reputation, and had been in the employ of Dielmann for a long time, and had frequently collected money for him, and always accounted for it. Connor's testimony was corroborated by another employé of the Sherwin-Williams Company, who stated that he had handed the bill to Connor telling him it was a $9 C. O. D. bill, and that he had seen Connor pay the appellant money; he remembered a $5 bill and two silver dollars.

The indictment charged theft and theft by bailee. Both counts were submitted to the jury, and the jury found appellant guilty of theft.

Appellant complains of the refusal of the following special charge:

"You are instructed that before you can find the defendant guilty of the offense of theft charged in the information you must believe from the evidence beyond a reasonable doubt that the defendant took the money wrongfully at the time of the taking. If you believe from the evidence beyond a reasonable doubt that the defendant obtained the money by means of a false pretext or representation, and that the defendant at the time he received the money, if he did receive it, had the intent to deprive the owner of the value thereof and to appropriate it to his own use and benefit, then he would be guilty; otherwise not.

"So, of course, if you should believe from the evidence that these facts did not exist, you will find the defendant not guilty, and this even though you should believe from the evidence that the defendant, after he received the money, if he did receive it,...