Gage v. State

• Decision Date: 27 October 1886
• Citation: 2 S.W. 638
• Parties: GAGE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

2 S.W. 638

GAGE

v. STATE.¹

Court of Appeals of Texas.

October 27, 1886.

Appeal from district court, Wise county.

The indictment alleged the theft of a watch from the person of one Glasscock, in Wise county, Texas, in which county the trial was had, resulting in the conviction of the defendant with a term of two years in the penitentiary assessed as punishment. The proof showed conclusively that, if taken at all, the watch was taken from Glasscock's person in Ellis county.

Crane & Patterson, for appellant, maintained the rule announced in the opinion. Asst. Atty. Gen. Burts, for the State.

WHITE, P.J.

Appellant was indicted for privately stealing a watch from the person and possession of one Glasscock, and the offense is alleged to have been committed in the county of Wise. As disclosed by the evidence, the theft was actually and in fact committed in the county of Ellis, but the defendant, after the theft, carried the watch into, and it was recovered by the owner in, Wise county, from a party into whose keeping it had been placed by the defendant.

It is most urgently insisted on this appeal that the proof of venue of the offense, as laid in the indictment, is not supported by the evidence. "Theft from the person," as the same is defined by our Code, (Pen. Code, arts. 744, 745,) it is contended is different, in its most important and essential particulars, from ordinary or general theft, (Pen. Code, art. 724;) and that, from its nature and constituent elements, it is impossible to bring it within the terms of that provision of our law which declares that, "where property is stolen in one county, and carried off by the offender to another, he may be prosecuted either in the county where he took the property, or in any other county through or into which he may have carried the same." Code Crim. Proc. art. 216.

Our statutes unquestionably make a marked distinction between the crimes of ordinary theft and theft from the person. "Theft from the person" is sui generis; is an offense distinct from any other theft, and the punishment prescribed therefor is not graded the same as in other theft. It is a felony, without regard to the value of the property stolen. Under an ordinary indictment for theft a party cannot be convicted for privately stealing from the person. The indictment, to warrant a conviction, must state everything which is essential to the proof of the crime, — that is, that the offense was "committed without the knowledge of the person from whom the property was taken, or so suddenly as not to allow time to make resistance before the property is carried away;" and the proof must correspond with the allegation. Penal Code, arts. 744, 745; Harris v. State, 17 Tex. App. 132; Kerry v. State, Id. 180. As known to our Code, the offense is more nearly akin to robbery than any other crime; the difference being mainly in the aggravating circumstances accompanying the larceny, larceny being a common basis of both offenses. Like robbery, it may be said to be a compound offense, — a trespass and a theft.

A general rule as to venue and jurisdiction is that the proof must establish a complete commission of the offense in the county where the offense is laid. 1 Bish. Crim. Law, (7th Ed.) § 139; Ray v. State, 4 Tex. 450. But the rule with regard to ordinary theft is that "after one has done what amounts to a complete theft, if he continues carrying away the stolen things, each step he takes with them may be treated as a new trespass, and, the intent to steal not being abandoned, a fresh larceny; the consequence of which is that he may be indicted either in the county from where he first took the goods, or in any other into which, the intent to steal continuing, he carries them." 1 Bish. Crim. Proc. (3d Ed.) § 59; Dixon v. State, 15 Tex. App. 480. "If, however, the larceny in the first county is compound, as if it is committed in the course of a robbery, the conviction in the second county can be only for the simple larceny, not including its aggravations; because the aggravations took place only in the first county." 1 Bish. Crim. Proc. § 60.

Mr. Russell, in his celebrated work on Crimes, says: "Larceny, like every offense, must be regularly tried in the same county or jurisdiction in which it was committed; but it should be noted with respect to larceny that the offense is considered committed in every county or jurisdiction into which the thief...