Flagg v. State

• Decision Date: 19 June 1907
• Citation: 103 S.W. 855
• Parties: FLAGG v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W. 855

FLAGG v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1907.

Appeal from Criminal District Court, Dallas County; E. B. Muse, Judge.

Ben Flagg, alias John Rainey, was convicted of theft, and appeals. Reversed and remanded.

Lemmon & Lively, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

This conviction was for theft of a mule; the punishment being assessed at two years' confinement in the penitentiary.

The evidence is undisputed that appellant took the animal of the prosecuting witness and sold it. The prosecuting witness, however, testified that appellant and himself had an agreement by which each was permitted, without going to the trouble of personally seeing the other and asking consent, to take any property belonging to each other and use the same; that each had the habit of going to the place of the other's residence and, without asking permission, taking any property that they might desire and using the same, and that it was all right; that each had acquiesced in the acts and conduct of the other in taking and using their property, and that under this general understanding and agreement the appellant had theretofore taken the mule he was charged with stealing in this case, and used him for a day or two, and returned him; that it was all right with the prosecuting witness; and, further, that had he known, when he received a telephone message from Dallas that his mule had been recovered and to come to Dallas, that it was the appellant who had the mule, he would not have bothered about it, but it would have been all right with him. On redirect examination by the state the prosecuting witness testified that his consent to take the mule only went to the extent of appellant using the mule, and not to selling it. Under this evidence appellant insists the court should have charged article 861 of the Penal Code, which reads as follows: "The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete." Under this clause of the statute we have held that in order to make out a prosecution it would devolve upon the state to prove beyond a reasonable doubt,...