Israel v. State, 26325
| Decision Date | 08 April 1953 |
| Docket Number | No. 26325,26325 |
| Parties | ISRAEL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Murray J. Howze, Monahans, for appellant.
Wesley Dice, State's Atty., Austin, for the State.
Appellant was convicted for felony theft of a 1946 model Ford automobile, and the jury assessed the punishment at two years in the penitentiary.
Appellant did not testify nor did he offer witnesses in his behalf.
An automobile answering the description contained in the indictment was taken from the lot of Ector Motor Company in Seminole, Texas, after closing hours on August 1, 1952. The switch key had been left in this car because it could not be removed.
The lot was inclosed by a fence or cable, and the gate was locked. The car was driven across the cable after breaking off a fence post.
This 1946 model Ford was found the next morning some twelve miles from Seminole and about one-quarter mile from an oil rig, where it had turned over.
A 1950 Ford car was stolen from a worker at such oil rig during the same night and was found on a highway in New Mexico, the gas tank empty.
Bobby Holland, a fifteen year old boy, testified that appellant came to the courts where he was spending the night with his friend Jerry Cogburn, arriving about midnight; that appellant said he had a car belonging to a young lady acquaintance who was waiting at a hotel; that he got in the car with appellant and rode with him to the oil rig and then to the place on the highway where the car turned over; that appellant drove the car at all times; that he (Bobby Holland) remained in the car while appellant got out for a while at the rig; that as a result of the wreck of the 1946 Ford he, the witness, 'passed out', and when he came to found himself in a 1950 Ford car which appellant was driving and which they later abandoned, at the place it was found on the highway in New Mexico, when it ran out of gas.
Bobby Holland further testified that appellant at one time told him that 'he had to knock down a post with two cables to get the car' but denied that he knew or was told that it was a stolen car; that he remained with appellant until they returned to Seminole two days later, then went to his mother's home at Sligo and told her what had happened; then accompanied her to the officers to whom he reported the matter.
Officers investigating the theft of the two cars found a set of boot tracks leading from tire tracks identical to tracks made by tires of the stolen 1946 Ford into the courts where Bobby Holland said he was visiting, and two sets of boot tracks leading from the courts to the car tracks at the same point.
Mrs. Cogburn, the mother of Jerry Cogburn, testified that Bobby Holland was visiting Jerry on the night in question, that appellant came by her window about one a. m. and that she heard whispering which she supposed to have been between appellant and Bobby Holland. She did not learn until the following morning that Bobby left with appellant.
We overrule the contention that the state failed to prove an intent on the part of appellant to deprive the owner of the 1946 Model Ford car and to appropriate it to his own use and benefit. There is no testimony to the effect that the taking was for any purpose other than to appropriate and deprive the owner of the automobile.
Nor can we agree that the court erred in submitting the question of the absence of intent to appropriate or to deprive the owner of the value of the automobile as an affirmative defense.
Such intent was a part of the state's case, and the charge of the court properly required a finding by the jury that appellant took the car with the intent to deprive the owner of the value of the same and to appropriate it to his own use and benefit and instructed an acquittal if the jury entertained a reasonable doubt that appellant took the automobile with such intent.
There is no testimony raising the defensive issue of an intent to temporarily use the car and return it to its...
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