Frank v. State

• Decision Date: 25 November 1891
• Citation: 17 S.W. 936
• Parties: FRANK v. STATE.
• Court: Texas Court of Appeals

17 S.W. 936

FRANK v. STATE.

Court of Appeals of Texas.

November 25, 1891.

Appeal from Smith county court; B. B. BEAIRD, Judge.

Sam Frank was convicted of theft, and appeals. Reversed.

Woldert & Johnson, for appellant. Richd. H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

The information charges theft of five dozen eggs, the property of Josephus Warren, from the possession of Clem Vickers, without the consent of either party. The facts are that the defendant met the owner in the road or street in the eastern edge of the city of Tyler, and, after ascertaining that he owned five dozen eggs, proposed to buy them, and offered the sum of 10 cents per dozen therefor. This was declined, whereupon the defendant then offered the said owner the sum of 15 cents per dozen for the eggs. This offer was also declined, and the parties separated. The eggs were in a wagon driven by Clem Vickers. The defendant then went to the wagon where he had been informed by Warren the eggs were, and asked Vickers if he had any eggs to sell. Vickers informed defendant that he had. Defendant then informed Vickers that he had bought the eggs from his (Vickers') father. Witness asked defendant how much he had paid for the property, and was told that the price paid was 10 cents per dozen. Vickers replied, "No, you didn't; he didn't sell these eggs for ten cents per dozen." Defendant then said, "Well, I will give him fifteen cents per dozen." "When defendant said he had bought the eggs at ten cents, I did not believe him; but when he claimed he paid fifteen cents per dozen for them I didn't know whether to believe him or not; but, he being a white boy, I supposed he was telling the truth, but I didn't much believe him. I let him have the eggs, and we counted them. There were five dozen. I let him have them because he said he had bought them from Josephus Warren." The defendant paid witness 45 cents for the eggs, and took them. Do these facts constitute theft? Appellant's contention is that they do not. Under this state of the case, in order to constitute the crime of theft, "the taking must be wrongful, so that, if the property came into the possession of the person accused of the theft by lawful means, a 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 of the person taking, and the same is so...