Grogan v. State
| Decision Date | 20 November 1901 |
| Citation | 65 S.W. 376 |
| Parties | GROGAN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Brown county; John W. Goodwin, Judge.
John Grogan was convicted of theft, and he appeals. Reversed. Appeal dismissed (on account of escape of appellant) December 4, 1901.
Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of theft, and his punishment assessed at two years' confinement in the penitentiary.
He requested two instructions, — one to the effect that the intent to commit theft must exist at the time of the taking; the other, if defendant took the property with the consent of the owner, or believed he had the right to take it under the agreement with said owner, he should be acquitted. Under the facts of the case these two charges should have been given. The substance of the evidence bearing upon this question may be stated about as follows: Witness Gearing was the owner of the property,—at least had control and charge of it for the Lone Star Oil Company of New Orleans. He testified that he gave defendant authority to use the property charged in the indictment to have been stolen if he saw proper to do so, and needed it; that is, he told defendant, if he got into any trouble at his well, he would help him out, and would lend him tools, and send men to assist him, but never gave permission to defendant to take these things during his absence. Gearing was absent from the state, and had left the property in Coggin's charge. Defendant proved by himself and other witnesses that Gearing had given him consent to take the property and use it. It is further in evidence that defendant took the property from where it had been stored by Gearing, which house was under the control of Coggin, in daylight, getting others to assist him in loading it, and drove away from the building through the town during business hours of the day. This indicates the salient facts without going into details. Under this testimony the charges asked should have been given, as they pointedly and tersely instructed the jury, if defendant did not take the property with intent to steal it at the time, and took it under the belief that he had authority so to do, there could be no theft.
The application for continuance will not be discussed, as it will not occur upon another trial as it did upon this; in fact, may not arise at all.
For the errors indicated, the judgment is reversed, and the cause remanded.
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