Clark v. State

• Decision Date: 15 June 1887
• Parties: CLARK v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W. 178

CLARK v. STATE.¹

Court of Appeals of Texas.

June 15, 1887.

Appeal from district court, Fannin county. On rehearing.

Tried below before the Honorable D. H. SCOTT.

The conviction in this case was for the felonious theft of an overcoat, the property of J. B. McLeod, and the penalty assessed was a term of four years in the penitentiary.

It was indisputably proved by the state that a fine blue chinchilla overcoat belonging to a Mr. Meade was taken from the office of the St. George Hotel, in the city of Dallas, of which hotel J. B. McLeod was proprietor, and that it was taken while one of McLeod's clerks was on duty; that McLeod paid Meade $20 to indemnify him for his loss, and that Meade afterwards reimbursed him upon the recovery of the coat; that the coat was very nearly new, and worth then at least $20, and that such coats, when new, were worth from $30 to $35. The coat was traced to the possession of and recovered from the defendant, in Fannin county. The single witness for the defense was a dry goods merchant of Fannin, who testified that chinchilla overcoats ranged in price from $9 to $18, and were rarely worth, when new, over $20.

J. H. Burts, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

WILLSON, J.

On a former day of the present term of the court the judgment of conviction in this case was affirmed orally. In a motion for rehearing made by defendant it is insisted that the conviction and affirmance thereof are erroneous, for the following reasons: (1) That the evidence shows that the alleged stolen property, if taken at all, was taken in Dallas county, and not in Fannin county, as alleged in the indictment; (2) that the evidence shows that the alleged stolen property was of less value than $20 in Fannin county; (3) that the evidence does not show the want of consent of the person who had the actual control of the alleged stolen property; (4) that there are fundamental errors in the charge of the court — First, as to the value of the property; and, second, that it is upon the weight of evidence; (5) that the indictment is fatally defective, in that it does not allege that the property was taken in Dallas county and carried into Fannin county by the defendant.

We will consider and dispose of the first and fifth objections together. "Where property is stolen in one county, and carried off by the offender to another, he may be prosecuted either in the county where he took the property, or in any other county through or into which he may have carried the same." Code Crim. Proc. art. 216. It was sufficient for the indictment to lay the venue of the offense in Fannin county, the county into which the offender had carried the stolen property, and the indictment was supported as to venue by proof that the property was stolen in Dallas county by the defendant, and by him carried into Fannin county. In this respect both the indictment and the evidence are, in our opinion, sufficient. Shubert v. State, 20 Tex. App. 320; Dixon v. State, 15 Tex. App. 480; Cameron v. State, 9 Tex. App. 332; Allen v. State, 4 Tex. App. 581.

The third objection is not sound. The alleged stolen property, at the time it was taken, was in the possession of McLeod, the hotel proprietor, and he was the special owner thereof. The possession of his servants was his possession, and it was only...