Hedge v. State

• Decision Date: 06 April 1921
• Docket Number: (No. 6192.)
• Citation: 229 S.W. 862
• Parties: HEDGE v. STATE.
• Court: Texas Court of Criminal Appeals

229 S.W. 862

HEDGE v. STATE.

(No. 6192.)

Court of Criminal Appeals of Texas.

April 6, 1921.

Rehearing Denied April 27, 1921.

Appeal from District Court, Armstrong County; W. E. Gee, Special Judge.

V. F. Hedge was convicted of felony theft, and he appeals. Affirmed.

A. M. Mood, of Amarillo, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

LATTIMORE, J.

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

The indictment is of unnecessary length and detail, but we think sufficiently charges appellant with the taking of $424.21, the property of M. D. Watkins, from his possession, without his consent, and with intent to appropriate same to the use and benefit of appellant.

Appellant made a motion to quash the indictment, based upon the proposition that the want of consent of the alleged owner, to the taking of the money, did not appear from the indictment; that it was not alleged that said owner did not voluntarily part with a certain check described, and did not transfer it to appellant; also that it affirmatively appeared from said indictment that appellant was entitled to a part of the amount named in said check, and that he received both what was due him and what was not at the same time and in the same check, and that allegations of said facts did not make out a case of theft in the pleadings; also that said statement in the indictment showed affirmatively a lack of the essential elements of theft.

Without setting out the indictment in all its details, it sufficiently alleged that Watkins owed appellant $636.79, and that by mistake of Watkins he delivered to appellant a check for $1,061, payable to appellant, and that same was for the sum and amount of $424.21 more than was due, and which excess was the personal property of Watkins, and was taken without the consent of Watkins, with intent to deprive him of the value of same, and to appropriate it to the use and benefit of appellant. This we think sufficiently charged the theft of $424.21, the property of Watkins. It has often been held by this court, in the class of cases wherein property comes with the consent of the owner into the possession of the alleged taker, that a prosecution for theft by an indictment in the ordinary form charging want of consent, would suffice. See article 1332, Vernon's P. C., and § 2493, Branch's Ann. P. C., and authorities cited under each.

That appellant was entitled to a part of the amount named in the check, and was therefore a part owner of that amount, and that said check was voluntarily delivered to appellant, would have no bearing when it manifestly appeared from the allegation in the indictment that he was not charged with theft of the check, but of the $424.21, being the money called for by said check in excess of that due to appellant, and upon which latter he made no claim, and was not entitled to same. We think the motion to quash was correctly overruled.

In this connection, turning to the charge of the trial court, we find where he gave two special charges asked by appellant, which were as follows:

"Gentlemen of the jury, even though you find Watkins paid defendant a check for $424.21 more than the contract between them called for, and that defendant accepted same and appropriated the proceeds of the whole of said check, still you cannot convict the defendant if you have a reasonable doubt whether the defendant was ignorant of the fact that he was receiving said $424.21 in excess of their contract."

"Gentlemen of the jury, the gist of the offense of theft is a fraudulent taking; a taking in good faith or under the mistaken belief that the taker is entitled thereto cannot be the basis of theft. In this case, if you have a reasonable doubt as to whether the defendant thought he had a right to receive the check as written, at the instant he did receive it, you cannot convict him."

We call attention to said special charges also in connection with an exception taken by appellant to paragraph 3 of the main charge, upon the ground that it did not tell the jury that appellant must have known at the time he received the check in question the exact amount of same which was in excess of the amount due him, and must have intended to appropriate that exact amount in order to make him guilty. That part of said paragraph of the charge complained of is as follows:

"If you find beyond a reasonable doubt that * * * the said M. D. Watkins then and there, in said county and state, delivered to the said defendant a check in the sum of $1,061, made payable to the said defendant or order, and drawn on the First State Bank of Claude, Tex., for said amount, and duly signed by the said M. D. Watkins, and dated July 26, 1920; and that said check was of the value of $1,061 in money, and that said check was by mistake of said M. D. Watkins made out in amount for $424.21 more than was due said defendant for said oats, and that said excess amount of $424.21 was the corporeal personal property of said M. D. Watkins, and that the said defendant did fraudulently take from the possession of the said M. D. Watkins said check so drawn for said excess amount of $424.21, and that said excess amount was of the value of $424.21 in money, and was the personal property of said M. D. Watkins, and that same was taken from him without his consent by the defendant, and with the intent of the said defendant, at the very time of the taking, to deprive the said M. D. Watkins of the value of the same, and to appropriate the same to the use and benefit of the said defendant, then you will find the defendant guilty, and assess his punishment at confinement in the penitentiary for not less than 2 nor more than 10 years."

Taking this charge and the first of the above-quoted special charges, and considering them together, can leave the mind in no doubt of the fact that the court specifically told the jury that unless appellant knew and intended to take and appropriate $424.21 at the time he received the check, he would not be guilty. However, we do not...