Garrett v. State

• Decision Date: 25 February 1920
• Docket Number: (No. 5686.)
• Citation: 218 S.W. 1064
• Parties: GARRETT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1064

218 S.W. 1064

GARRETT v.STATE.

(No. 5686.)

Court of Criminal Appeals of Texas.

February 25, 1920.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

M. T. Garrett was convicted of felony theft, and he appeals.Reversed and remanded.

Mays & Mays, of Ft. Worth, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of felony theft, in the district court of Eastland county, and his punishment fixed at two years' confinement in the penitentiary.

In his motion for a new trialappellant complains of the insufficiency of the evidence to support a conviction for felony.The testimony in the record shows that in places apparently under the control of appellant were found more than enough of the property of the prosecuting witness to aggregate in value $50.In fact, it is shown that one carton of cigarettes so found and identified was of the value of $73.Unfortunately, we find in the indictment no mention of cigarettes.The indictment describes and fixes the values of the alleged stolen property as follows:

One mirror ........................... $ 1 65
                One traveling set ....................   2 65
                One flashlight .......................   2 05
                Two bottles of toilet water ..........   4 40
                One kodak ............................   9 25
                Four fountain pens ...................   7 60
                One razor ............................   6 25
                Two fountain pens ....................   5 40
                One bottle of toilet water ...........   2 20
                Three boxes of cigars ................  16 50
                One flashlight .......................   2 50
                One flashlight and battery ...........   1 65
                

Totaling the above, it appears to be of an aggregate value of $65.10.

The proposition is unanswerable that, no matter what amount of other property the accused may be shown to have stolen at the time and place alleged, such proof would not support a conviction, unless it also appear that the property described in the indictment was stolen, and in case it be claimed that the theft was a felony, such claim must be sustained by proof of the taking of enough of the property mentioned in the indictment to aggregate $50 in value.

Examining the testimony of Mr. Martin, the owner of the alleged stolen property, we find no statement anywhere that he had lost a kodak, and the only reference in the entire testimony to a kodak is found in his statement that he and the sheriff found in appellant's room a kodak, which he did not take, because he could not swear to it.The alleged value of the kodak was $9.25, and since there is no proof that it was stolen, or that Mr. Martin lost any such property, such value should be deducted, which would leave an aggregate value of the remaining property...