Haley v. State

• Citation: 191 S.W.2d 741
• Decision Date: 09 January 1946
• Docket Number: No. 23262.,23262.
• Parties: HALEY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

191 S.W.2d 741

HALEY v. STATE.

No. 23262.

Court of Criminal Appeals of Texas.

January 9, 1946.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.

John D. Haley was convicted of the offense of theft of an automobile over the value of $50 and he appeals.

Judgment affirmed.

Allen & Allen, Garvey Brown, Jack H. Reeves, and King C. Haynie, all of Houston, for appellant.

A. C. Winborn, Cr. Dist. Atty., and E. T. Branch, Asst. Cr. Dist. Atty., both of Houston, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of an automobile over the value of fifty dollars. The punishment assessed is confinement in the state penitentiary for a term of two years.

There are not any bills of exception in the record complaining of the admission or exclusion of any evidence; nor are there any objections to the court's charge. The only question presented for review relates to the sufficiency of the evidence to sustain the conviction. Appellant contends that there is a fatal variance between the allegations in the indictment and the proof in support thereof. The indictment contains two counts, in the first of which appellant was charged with fraudulently receiving from some person unknown to the grand jurors and fraudulently concealing certain corporeal personal property then and there belonging to Mrs. Gene Blackley, which property had theretofore been acquired in such manner as to bring it within the meaning of the term theft, etc. In the second count, it is alleged that the said John D. Haley, on or about the 4th day of March, A.D., 1945, in said county and state, did fraudulently take and steal one automobile of the value of six hundred dollars, the same being then and there the corporeal personal property of Mrs. Gene Blackley, the owner thereof, from the possession of the said owner, without the consent of said owner and with the intent then and there to deprive the said owner of the value of the same and to appropriate it to the use and benefit of the said John D. Haley, etc.

Mrs. Gene Blackley testified in substance as follows:

"I live at 303 W. 9th Street, here in Houston, Harris County, Texas. On the 4th of March, 1945, I was the owner of an automobile, a 1937 Buick Sedan, valued at approximately seven hundred dollars. That automobile was stolen from in front of my house about 11:20 at night, and I recovered it a couple of days later. The automobile was stolen on Sunday and I recovered it on Tuesday from the police officers. I am married and my husband is in the army. * * * I did not give this defendant or anyone else my consent or permission to take my automobile."

On cross-examination she testified as follows: "The car was not in the garage, it was parked on the street; that is the place where I keep my car. The car belongs to my husband."

On re-direct examination she testified: "The automobile was in my possession at the time it was stolen. My husband was in the army at that time."

Upon being recalled, she testified on direct examination as follows: "Previous to the 4th of March, this year, my husband was in the army and he was in the army on the 4th of March. I had possession and control of the automobile at the time it was stolen. My husband was not at home at the time the automobile was stolen. * * * My husband is at home now."

It seems to be the...