Davis v. State

• Decision Date: 25 October 1893
• Docket Number: (No. 622.)
• Citation: 23 S.W. 794
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

23 S.W. 794

DAVIS v. STATE.

(No. 622.)

Court of Criminal Appeals of Texas.

October 25, 1893.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

Robert Davis was convicted of larceny, and appeals. Affirmed.

R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant prosecutes this appeal from a conviction of theft for money. The property is described in the indictment as follows, to wit: "$200 in United States currency, money of the value of $200, the number and size of the bills being unknown to the grand jury; $200 gold coin of the United States money, legal tender, of the value of $200, the number and size of the pieces and value of each being unknown to the grand jurors; $50 in silver money, coin of the United States, of the value of $50, the size and value of each piece being unknown to the grand jurors." The evidence tending to show that some of the paper money, as well as some of the gold pieces, could have been particularly described by use of ordinary diligence, counsel for defendant contends, it constitutes a fatal variance between allegation and proof. It is not pretended that, if McKinley and Thornton both had been before the grand jury, a better description of the $50 in silver could have been given than that set out in the indictment; hence there is no variance, nor laches in regard to the silver. If appellant stole the silver, he is guilty of a felony, whether he took the gold and paper money or not. Evidence that he committed theft of the gold and paper, whether alleged in the indictment or not, was admissible to prove the theft of the silver, all the money having been taken by one act. The grand jury was not guilty of negligence; hence the supposed variance is not in this case. We are not to be understood as holding that the indictment fails to give a sufficient description of the gold and paper money, for we believe it does.

Remarks of counsel complained of were authorized by the evidence in this case, and, if not, appellant should have called upon the court to stop counsel, and instruct the jury to disregard the remarks. The testimony, we think, is sufficient to support the conviction. The judgment is affirmed.