Harris v. State

• Decision Date: 19 March 1890
• Citation: 14 S.W. 390
• Parties: HARRIS v. STATE.
• Court: Texas Court of Appeals

14 S.W. 390

HARRIS v. STATE.

Court of Appeals of Texas.

March 19, 1890.

Appeal from district court, Harris county; C. L. CLEVELAND, Judge.

Gustave Cook, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for theft of over $20 in money. The case is a novel one, and the facts, succinctly stated, are fully set forth in the following statement of the prosecuting witness, viz.: "The defendant was employed by me to do some work in the back part of my store. His work did not require him to go up-stairs. I noticed him go up-stairs, and almost immediately he came down and went off the premises. Very soon on the same day he came back, and I observed him again going up-stairs, where he had no business. I then followed him up-stairs, and saw him have his hand in a [bureau] drawer which I had left locked, and in which I had locked up $51 in money, of the silver coinage of the United States, of the value of $51, and which was my property. Defendant had unlocked my drawer with his own keys, which were then in the drawer, and had his hand in the drawer when I saw him. The drawer which I had left locked, and in which I had the money, was unlocked and pulled out about one foot, and his hand was in this drawer, and his keys were in the key-hole of the drawer when I discovered him. I at once demanded of him to hand over the money which he had taken, or I would call a policeman at once. He gave me what he had in his hand, and some that he had in his pocket. The money that he gave me was $6 in silver. The other $45 was in the drawer, and what he returned to me, and what was still in the drawer when I came up, made up the $51 I [had] left in the drawer [before the theft.]" Upon this state of the case the prosecution insisted that defendant was liable for the theft of the $51, and guilty of a felony, while the defense was that he was only liable for the theft of $6, which would be a misdemeanor. In the general charge the court instructed the jury, in effect, that if defendant, under circumstances amounting to theft, unlocked the drawer, and partly removed the open drawer, and took therefrom a part of the money contained in said drawer, though the part so taken may have been less than $20 at the time he was discovered in the act of removing the contents of the said drawer, then they should find him guilty of theft of $20 or over, and assess his punishment in the penitentiary not less than 2 nor more than 10 years. At the instance of defendant a specially requested instruction, presenting the defendant's theory, was given, to the effect that, if the jury were not satisfied beyond a reasonable doubt that the defendant took at least $20 into his actual possession then they should find him guilty of theft of property of value less than $20, and fine him not to exceed $500, and imprison him in the county jail not to exceed one year, or imprison him without fine.

As above stated, defendant was found guilty of a felony, that is, of theft of $20 and over and given two years in the penitentiary. In other words, he has been found guilty of the theft of the entire amount of $51, the entire sum of money contained in the drawer. At common law, the main contention in such a case would have been as to the sufficiency of the proof to establish asportation of the property, which, at common law, was the essential ingredient of larceny. "At common law," says Mr. Russell, "it appears to be well settled that the felony lies in the very...