Downs v. State

• Decision Date: 04 April 1917
• Docket Number: (No. 4413.)
• Citation: 194 S.W. 138
• Parties: DOWNS v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W. 138

DOWNS v. STATE.

(No. 4413.)

Court of Criminal Appeals of Texas.

April 4, 1917.

Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.

Oscar Downs was convicted of theft, and he appeals. Reversed and remanded.

P. O. Lopp and G. W. Dunaway, both of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the state penitentiary for a term of two years upon an indictment and conviction for theft.

It appears appellant deposited his suit case with the agent of the Texas & Pacific Railway Company in charge of its baggage-room in Ft. Worth, and received a check corresponding with the number on his suit case, which was 53252. He returned the check, and the agent by mistake gave him a suit case belonging to another party, on which the check number was 52352. Appellant claimed that he did not discover the mistake made until the next day after he had gotten possession of the suit case; that at the time he received it he had been drinking, and was intoxicated; that he delivered the check which the agent gave him and received from him a suit case which he supposed to be his own until the following day. There was evidence showing that after discovery of the mistake appellant converted the property.

The court charged the jury on the law of theft, and appellant excepted to the charge on the ground that it failed to tell the jury, in effect, that if appellant at the time he received the property did not know that it was not his own, and did not at that time intend to appropriate it to his own use, but formed that intention subsequently after discovering the mistake, that he would not be guilty. Appellant also requested special charges, which were refused, submitting this issue. The prosecution was under article 1329, P. C. Mr. Branch, in his Annotated Penal Code, with reference to the subjects involved, uses the following language, and cites the authorities mentioned:

"If the original taking was lawful, no false pretext being used, a conviction based upon a subsequent appropriation will not be sustained under an ordinary indictment for theft. Stokely v. State, 24 Tex. App. 509, 6 S. W. 538; Taylor v. State, 25 Tex. App. 101, 7 S. W. 861; Nichols v. State, 28 Tex. App. 107, 12 S. W. 500; Williams v. State, 30 Tex. App. 153, 16 S. W. 760; Jones v. State, 49 S. W. 387; Gosler v. State, 56 S. W. 51; Peters v. State, 49 Tex. Cr. R. 365, 91 S. W. 224; Warren v. State, 106 S. W. 382; Richards v. State, 55 Tex. C. R. 281, 116 S. W. 587.

"Proof of the conversion of the property is not sufficient, of itself, to show that defendant intended at the time of the taking to deprive the owner of the value of the same and to appropriate it to the use or benefit of defendant. Pitts v. State, 3 Tex. App. 210; Hernandez v. State, 20 Tex. App. 152; Stokely v. State, 24 Tex. App. 510, 6 S. W. 538; Cox v. State, 28 Tex. App. 95, 12 S. W. 493; Williams v. State, 30 Tex. App. 155, 16 S. W. 760; Lopez v. State, 37 Tex. Cr. R. 650, 40 S. W. 972; Gosler v. State, 56 S. W. 51."

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