Dignowitty v. State

• Decision Date: 01 January 1856
• Citation: 17 Tex. 521
• Parties: ANTHONY M. DIGNOWITTY v. THE STATE.
• Court: Texas Supreme Court

17 Tex. 521

ANTHONY M. DIGNOWITTY

v.THE STATE.

Supreme Court of Texas.

1856.

Where the owner of a bond, the obligee, at the request of the oligor, handed him the bond, that he might inspect it, and the obligor immediately put it into the fire, where it was burned up, it was held that there was not such possession in the obligor as would require the state to prove that the fraudulent design existed at the moment of the receipt of the paper, in order to convict the obligor of larceny; that the possession remained in the obligee until the actual conversion, and if that was done by the obligor without the consent of the owner, and with a view to benefit himself by depriving the obligee of the bond, it was sufficient to make out the charge.

Where the defendant was charged with larceny of a bond for title, the property of A, and the proof was that the bond was to A and B, who were husband and wife, and that B had died leaving one child surviving, and that the defendant took the bond from the possession of A, it was held that the court properly refused to instruct the jury, that if the bond was not the sole property of A, or if other parties, or any other party had an interest therein, they could not convict.

An indictment for larceny, which described the thing stolen as a certain instrument of writing containing evidence of an existing contract (for the conveyance of real estate, to wit: a town lot in the city of San Antonio, in the county aforesaid) of the value of one hundred and fifty dollars, of the property of Matilda Francis, held, on motion in arrest of judgment, that the description was sufficiently certain under the statute.

The rule is, that where one person has the general and another a special property in the thing stolen, the property may be averred in the indictment to be in either. [9 Tex. 115;30 Tex. 367.]

It would seem that this court will not reverse the judgment on the ground that the court below erred in the refusal to grant a new trial for cause which is supported by the affidavit of the defendant alone.¹

Counter-affidavits are receivable on a motion for a new trial.

Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.

Indictment for larceny of a certain instrument of writing containing evidence of an existing contract (for the conveyance of real estate, to wit: a town lot in the city of San Antonio, in the county aforesaid) of the value of one hundred and fifty dollars, of the property of Matilda Francis, etc.

Plea, not guilty. Evidence as follows:

Matilda Francis, a witness for the state, testified as follows: In August, 1853, my husband, William Francis, and myself bought two town lots from Anthony M. Dignowitty, in the city of San Antonio, for one of which we paid the money, and he gave us a deed; for the other we were to pay him in twelve months, at which time, upon the payment of the money, he was to make us a deed. He gave us a contract in writing to that effect. The consideration of this lot, for which the contract was given, was one hundred and thirty dollars. My husband died in September, A. D. 1853. We had but one child living at his death, an infant in my arms, now living. In April, 1854, Dignowitty came to my house in San Antonio. I had my child in my arms; it was sick; the daughter of D. C. Van Derlip, a sprightly child of from ten to twelve years of age, was in the room with me. Mr. Dignowitty said he wished to see me alone; Miss Van Derlip went out of the room; he then said, “Mrs. Francis, I would like to see that contract between us;” I got the paper out of my trunk and handed it to him; he turned around, put it in the fire (where it burned up), and said, turning to me, “Now, madam, we are even; you owe me nothing and I owe you nothing.” I replied, “why did you do that?” He said “I can now get two hundred dollars for this lot, and I want money.” He left my house; I gave my sick child to Miss Van Derlip, and followed him. He went to John Layer's and offered to sell the lot for $200; he said he had got back his bond from Mrs. Francis, and he was at liberty to dispose of the lot. I told Layer that he had destroyed the contract, and Layer said he would not purchase then at any price. I went the same day and made complaint to the mayor. This was in April, 1854. The money was not due until August after; I would have been ready to pay for the lot when the money became due. The contract was my property. In September, after suit instituted, his lawyer, Stribling, presented me with a deed for the lot; I paid him the money and took the deed. I still own the property.

Cross-examined: Dignowitty spoke of administering on the estate of my husband; wanted me to administer on it; I told him I was unable to do so. I had no idea, when I gave him the contract, that he would destroy it. He asked me to let him look at it; I handed it to him like I would have done to any other gentleman. The contract was executed to my husband, William Francis, and myself.

John Layer, for the defense, testified that defendant offered to sell him the lot, as he had got back the bond from Mrs. Francis; that Mrs. Francis appeared at the same time and told witness that defendant had destroyed the paper; that thereupon witness declined purchasing. Heard Mrs. Francis, in a subsequent conversation, talking about selling one of her lots so as to enable her to build on the other.

William Annin, for the defense, testified that Mrs. Francis came into Vance's store, where witness was a clerk, one or two days after the transaction, and asked what course she should pursue in regard to the matter; told witness that defendant had torn the paper; witness' impression from what she said was that she had been persuaded to prosecute defendant by persons inimical to him; that she told witness that defendant had destroyed the paper, and that she had not made up her mind what to do.

The defendant offered in evidence his recognizance, taken on the 20th day of April, A. D. 1854, and the docket of John M. Carolan, mayor and ex-officio justice of the peace of Bexar county, showing that the preliminary examination of said defendant was held, and process issued on the 19th and 20th days of April, A. D. 1854.

The judge charged the jury, without request, as follows:

1st. The prisoner at the bar, A. M. Dignowitty, is charged with the stealing, taking and carrying away a certain instrument of writing, containing evidence of an existing contract for the conveyance of land in this city, the property of Matilda Francis.

2d. If, from the evidence, you believe the defendant guilty of having taken or received from the hands of Matilda Francis the instrument described in the indictment, and that such instrument was unlawfully destroyed by the prisoner without the consent of the owner and with a view to benefit himself, by depriving Mrs. Francis of that paper, then the prisoner is guilty as charged, and you will assess the punishment, in your verdict, at imprisonment at hard labor in the penitentiary for a term not less that one year, nor more than five years.

3d. If, however, you believe that the paper was destroyed by the accused under an agreement or understanding with Matilda Francis, her subsequent prosecution will not raise it to the grade of a criminal transaction.

4th. If, from the evidence, you entertain a well grounded or reasonable doubt as to whether the prisoner destroyed the paper under the circumstances set forth in charge No. 2, or under agreement with Mrs. Francis, which agreement was an existing one at the time of the destruction of the bond, then you will give the prisoner the benefit of such reasonable doubt and acquit him.

The defendant requested the judge to instruct the jury as follows:

If the paper or contract, alleged to have been stolen, was not the sole property of Matilda Francis, or if other parties, or any other party had an interest therein, in such case you cannot convict the defendant.

If the paper was made to William and Matilda Francis, and they had a child, or children, living at the time of the alleged destruction, then, said William being dead, his interest in the property became vested in such child or children.

I decline giving this instruction. (Signature of judge.)

Further: 1st. If the instrument were merely destroyed and not taken with felonious intent, the jury will return a verdict of not guilty.

2d. To find the defendant guilty of the charge contained in the indictment, the jury must believe, from the evidence, that the instrument described in the indictment was a valid, subsisting contract; that it was feloniously taken and carried away by the defendant; and that it was of the value of twenty dollars.

I decline giving instructions Nos. 1 and 2. (Judge's signature.)

3d. The jury cannot find the defendant guilty, unless they believe from the evidence the instrument alleged to have been stolen was of the value of twenty dollars.

I give this instruction with the qualification that, if you find her (Mrs. Francis') interest in the paper was of the value of twenty dollars, such interest makes the paper of sufficient value within the meaning of the law. (Signature of judge.)

Verdict of guilty, and punishment assessed at one year in the penitentiary.

Motion for a new trial on all the grounds usually taken, and on the further ground stated in defendant's affidavit as follows:

Anthony M. Dignowitty, being duly sworn, deposes and says that, in the trial of the foregoing cause, Francis McCann is a most important witness; that said witness knows and can prove that Matilda Francis urged this deponent, at various times prior to the alleged destruction of the instrument charged to have been stolen, to cancel such instrument, inasmuch as she was and would be unable to pay for the lot of land therein contracted for; that deponent repeatedly refused to cancel the same, but was finally prevailed upon so to do; and that the destruction of said instrument took place in consequence of an...