Flynn v. State

• Court: Texas Supreme Court
• Writing for the Court: DEVINE
• Citation: Flynn v. State, 42 Tex. 301 (Tex. 1874)
• Decision Date: 01 January 1874
• Parties: THOMAS FLYNN v. THE STATE.

42 Tex. 301

THOMAS FLYNN

v.THE STATE.

Supreme Court of Texas.

1874.

APPEAL from Galveston. Tried below before the Hon. Gustave Cook.

Thomas Flynn was indicted, in the Criminal District Court of Galveston county, for the crime of theft from the person of Nicholas Walsh. The indictment was a joint one, charging the appellant, one James Anderson, and one George Wheeler, with the offense.

There was a severance, and appellant being tried, was convicted, the jury assessing his punishment at five years in the penitentiary. There was a motion for a new trial, which, on hearing, was overruled by the court, whereupon defendant excepted, and gave notice of appeal.

There was but one witness called and examined by the State, to wit, Nicholas Walsh. The defendant called no witness.

Walsh testified that on the night of 20th November, 1874, he was at the door of the theater in the City of Galveston. There was quite a crowd there. He felt himself jostled several times as he was trying to get out of the crowd. He felt a hand in his pocket, and, turning immediately, “found the defendant, Thomas Flynn, with his hand on my (his) pocket-book.” Flynn had pulled it from the bottom of his (Walsh's) pocket, but had not taken it entirely out of the pocket, “it being half in, half out of my pocket,” that is, one-half being in the pocket, the other half in Flynn's hand. Witness asked Flynn what he was doing. Flynn replied, “trying to get out of the crowd.” The pocket-book never left witness's person. He did not “grab” the man--could have done so, but didn't think of it.

The charge of the court in this case is given in full, as being, in its pointed application to facts, in contrast with a practice which this court has condemned, of charging in the language of the Code. It is as follows:

“If the jury believe from the evidence that the defendant put his hand into the pocket of Nicholas Walsh, without his knowledge, and fraudulently took his Walsh's pocket-book, with the intent to appropriate it to the use and benefit of the defendant, without the consent of Walsh, he is guilty of theft from the person, and you may assess the punishment at confinement in the penitentiary not less than two, nor more than seven years.

If you believe the defendant had the pocket-book in his hand without the knowledge of Walsh, and but for the discovery of Walsh would have carried it away, it makes no difference that he did not carry it away. You must be satisfied by the evidence that defendant had it in his hand completely before Walsh was aware of it, but it is not necessary that he should have gotten the pocket-book entirely out of the pocket of Walsh, if you believe he would have carried it away but for Walsh's discovery.

The defendant is presumed to be innocent until his guilt is shown by the evidence to your satisfaction, and any reasonable doubt of his guilt entitles him to an acquittal. If you do not believe that the defendant had the pocket-book in his hand without the knowledge of Walsh, taken with the intent to carry it away, without the consent of Walsh, and appropriating it to his own use, then you should acquit.

If the defendant had the pocket-book in his hand before Walsh was aware of it, the subsequent discovery of the fact by Walsh, and the consequent relinquishment of his hold of it by defendant, would make no difference, and the defendant could nevertheless be guilty, but unless you so believe you should acquit.”

Leslie Thompson, for appellant, argued that to convict there must have been a complete severance of the property from the person, and cited a case strongly in point, viz., Rex v. Thompson, 1 Moody C. C., p. 78.

Frank M. Spencer, for the State, contended that the property had been sufficiently in the possession of Flynn to constitute the offense, and that no complete...