Davis v. State
| Decision Date | 19 October 1910 |
| Citation | 131 S.W. 315 |
| Parties | DAVIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Fort Bend County Court; G. C. Baker, Jr., Judge.
Chas. Davis, alias Johnson, was convicted of larceny, and appeals. Prosecution dismissed.
W. L. Davidson, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
This is an appeal from a conviction for theft of property under the value of $50, with a penalty of $10 fine.
The affidavit and information allege "that Chas. Davis, alias Johnson, in the county of Fort Bend and state of Texas, on or about the 19th day of February, 1910, and before the filing of this information, was then and there in possession of a ring of the value of $5.00, the property of Pearcy Franklin, the said Pearcy Franklin having loaned said ring to Geo. Davis, who did then and there, without the consent of the said Pearcy Franklin, unlawfully and fraudulently, convert the said ring to his own use, with the intent to deprive the owner thereof of the value of the same, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." Appellant filed a motion in arrest of judgment, because the information and complaint allege that Chas. Davis, alias Johnson, was in possession of the ring by virtue of the owner, Pearcy Franklin, having loaned it to Geo. Davis, and that the allegations are inconsistent, in that they allege the possession of the property in one person, to wit, Chas. Davis, and the appropriation of it by Geo. Davis. There is no allegation in the information or complaint that Geo. Davis and Chas. Davis are one and the same person. It does not show any connection between Geo. Davis and Chas. Davis. We think the affidavit and information are both bad; that the allegations are inconsistent, and we are not advised by the complaint or information as to whether Geo. Davis or Chas. Davis got the ring from the prosecuting witness, or which one appropriated it.
The affidavit and information being defective, the conviction in this case will be set aside, and the case reversed, and the prosecution ordered dismissed.
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