Clark v. State

• Decision Date: 04 May 1910
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 131

CLARK v. STATE.

Court of Criminal Appeals of Texas.

May 4, 1910.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

Will Clark was convicted of theft, and he appeals. Reversed and remanded.

See, also, 120 S. W. 892.

John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of theft, and his punishment assessed at two years' confinement in the penitentiary.

The evidence discloses that appellant had been convicted of burglary, and his punishment assessed at three years' confinement in the penitentiary; the indictment in this case being for the alleged theft committed in connection with that burglary. Plea of former conviction was interposed, but not considered, upon the trial of this case. The action of the court in this matter was correct. Under our statute a party can be convicted of burglary as well as of the offense committed after the burglarious entry. The conviction of one cannot be pleaded in bar of the other. It is further disclosed that appellant was found in the store burglarized, by an officer, and arrested. In a showcase in the store was the figure of a woman used for the display of goods. On this figure was a dress and a cloak; the cloak being valued at $40 and the dress at $85. Appellant had taken the cloak from the figure, rolled it up and laid it on the floor, and was trying to take off the dress, at the time the officer arrested him, but had not succeeded. The dress, as testified by the owner of the store, had been pulled down to the bottom of the figure, but had not been removed. He further testified that the dress could not be removed in that manner, that it would have to be taken off over the head of the figure. This, in substance, is the state's case.

1. Among other contentions made is that the evidence does not support the verdict of the jury. We are of opinion that this contention is correct in so far as a felony conviction is concerned. If appellant had removed the cloak from the figure and had gotten possession of it in this manner, this would constitute theft, but we are of opinion, with reference to the dress, that he could not be convicted of theft. In order to constitute theft the thief must have complete control of the thing sought to be stolen. Mr. Bishop in his New Criminal Law (section 795) says: "This control must be of such importance that no imperfect control, whether brief or protracted, will be sufficient." He further says: "Where goods in a shop were tied to a string attached at one end to the counter, a thief who carried them as far away as the string would permit was held not to have committed larceny of them, because of their being thus attached." The same rule was applied where a purse, fastened by a string to a bunch of keys in the pocket, was taken therefrom, while the keys remained. In the footnotes quite a number of cases are cited supporting the text. In Harris v. State, 29 Tex. App. 101, 14 S. W. 390, 25 Am. St. Rep. 717, this court approvingly quoted the doctrine laid down by Mr. Bishop, using this quotation: "The doctrine is that any removal, however slight, of the entire article, which is not attached either to the soil or to any other thing not removed, is sufficient, while nothing short of this will do. Therefore, if the thief has the absolute control of the thing but for an instant, the larceny is complete." The Harris Case has been followed in subsequent cases by this court. The same doctrine is laid down in Tarrango v. State, 44 Tex. Cr. R. 385, 71 S. W. 597, in an opinion written by Judge Brooks, and was followed in Rodriquez v. State, 71 S. W. 596. The latter was a case of theft from the person. The owner testified that he felt something pulling at his shirt front, and, upon looking around to ascertain what it meant, saw some one undertaking to unscrew from his shirt a valuable diamond pin. The party had succeeded in about half unscrewing it when the owner caught his hand, and held him until an officer came. The court say: "We agree with appellant that this is not sufficient evidence to show a taking. ...