Charles v. State

• Decision Date: 07 May 1919
• Docket Number: (No. 5205.)
• Citation: 213 S.W. 266
• Parties: CHARLES v. STATE.
• Court: Texas Court of Criminal Appeals

213 S.W. 266

CHARLES v. STATE.

(No. 5205.)

Court of Criminal Appeals of Texas.

May 7, 1919.

On Motion for Rehearing June 25, 1919.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Isrie Charles was convicted of theft of property of a value exceeding $50, and he appeals. Affirmed.

Wm. L. Schlesinger and Chambers & Watson, all of San Antonio, for appellant.

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

LATTIMORE, J.

Appellant was convicted of theft of property of the value of more than $50, in the Thirty-Seventh district court at San Antonio, and his punishment fixed at two years' confinement in the penitentiary.

Complaint is made of the fact that the evidence is insufficient to support the verdict. The property taken was $85 in money, which, at the time it was lost, was in a small purse, and this in turn was in a handkerchief, all being in the hip pocket of the owner, one Mr. Cook, who, at the time of the alleged theft in September, 1917, was selling gasoline in San Antonio. On the occasion in question he was making a delivery of gasoline to the Howe Auto Company on Soledad street, and was talking to Mr. Howe, when the 'phone rang and Mr. Howe went to answer same. Cook says he pulled out his handkerchief containing the purse, and in less than three or four minutes a Mrs. Waters came to him and asked him if he had lost anything. He grabbed for his pocket and said, "Yes, my purse." She asked him if it was a little bit of a purse, and, he said, "Yes," and she then said, "There goes the man who picked it up, down the street in his shirt sleeves." Cook ran down the street and stopped a man, and Mrs. Waters very promptly told him he had the wrong man. She testified that by that time the appellant had disappeared. Mrs Waters further testified, without objection, as follows:

"When I first saw the purse lying on the walk, I do not know where the defendant was. When I first saw him, he picked up the pocketbook. He stood there and kind of looked. The purse was kind of between the man's legs and back of him. He kind of give the purse a little shove and picked it up, and then started down the street, and then started to run. I next saw this man two or three weeks afterward. I saw him up here where the service cars are, and then I said, `There is the man that got the purse.' I told my husband. On information I gave this defendant was arrested, and I had to go over to the jail to identify him, and I identified him. This was about two weeks after he picked the pocketbook up. I think the pocketbook was taken about the 1st of September."

This witness also positively identified appellant as the party who took the purse. It is true that in one place she speaks of the article which she saw him pick up as looking like a knife case, but in each other instance she calls it a purse, and says it was lying just behind the witness Cook on the ground, and she saw appellant pick the same up, and acted as if he were nervous, and then he ran away with it. We think the facts as to the ownership and loss of the property, and also appellant's connection therewith, of sufficient cogency and strength to justify the jury's finding that he took the purse containing the witness Cook's money.

Complaint is made that the court failed to charge on circumstantial evidence, but no exception was taken to the court's charge, and no special instruction presented on this point. In this state of the record authorities are numerous that the failure of the court to so charge is not reversible error.

Complaint is made that the witness Harvey was permitted to state as follows:

"I remember the circumstances of the arrest and identification of this defendant. ...