Kauffman v. State

• Decision Date: 11 March 1908
• Citation: 109 S.W. 172
• Parties: KAUFFMAN v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 172

KAUFFMAN v.STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

Appeal from Taylor County Court; T. A. Bledsoe, Judge.

Jerome Kauffman was convicted of theft, and he appeals.Affirmed.

W. D. Scarborough, for appellant.F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Taylor county, at the August term of 1907, for the theft of a diamond ring, of the value of $40; same being the property of Mrs. J. B. Bowie, alleged to have been taken from her without her consent.The case was tried in the county court of the aforesaid county, and resulted in a conviction; appellant's punishment being assessed at six months' confinement in the county jail.

It is contended that the conviction should be set aside for the reason that the ownership of the ring in question was wrongly laid in Mrs. Bowie, and that the ownership of the property and possession thereof should have been charged to be in her husband.The facts show beyond dispute that the ring in question was the separate property of Mrs. Bowie, having been owned by her before her marriage.At the date of the taking she and her husband occupied jointly a room at the residence of appellant's mother, Mrs. D. S. Kauffman.Some days before she missed the ring Mrs. Bowie had placed it in her husband's collar box.She was unable to locate the precise time that it was taken; but there was, as stated in the testimony, an interval of some five days between the time when she put the ring away and the date when she discovered its loss.Appellant's contention is that during the marital relation the wife's separate property is under the sole management of the husband, as provided in Rev. St. 1895, arts. 2967, 2968; further, that, the evidence showing that the ring had been placed in her husband's collar box, this fact made him in a sense the sole possessor of it.We do not think there is any merit in appellant's contention.Article 445 of our Code of Criminal Procedure of 1895 is as follows: "Where one person owns the property, and another person has the possession, charge or control of the same, the ownership thereof may be alleged to be in either.Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them.When the property belongs to the estate of a deceased person, the ownership may be alleged to be in the executor, administrator or heirs of such deceased person or in any one of such heirs.Where it is the separate property of a married woman, the ownership may be alleged to be in her, or in her husband.Where the ownership of the property is unknown to the grand jury, it shall be sufficient to allege that fact."We think the provisions of our Code of Criminal Procedure should, without discussion, dispose of appellant's contention.It is there distinctly provided "that, where it is the separate property of a married woman, the ownership may be alleged to be in her or her husband."If this provision of our Code of Criminal Procedure cannot be held to be applied to an article of jewelry, the wife's property, which neither waxes nor wanes, does not increase or bear fruit, but which from its nature is for her pleasure and adornment, then this article of the statute could never apply in any case.

Nor do we believe that there is any decision of this court which, when fairly analyzed, holds to the contrary.Clearly the case of Coombes v. State, 17 Tex. App. 258, cannot be by any reasonable construction so interpreted.That case was reversed for the sole and only reason that the ownership of the animal stolen was not proven.In that casethe court does say that the burden did not rest upon the state to show the lack of consent for the taking on the part of the wife.That language, of course, is to be understood with reference to the fact that this property on the range was productive property, which might have increased, and therefore of a character to be in some sense subject to the husband's control; but even in that case it is clearly stated that, while not necessary for the state to negative the giving of the wife's consent to the taking, proof of such consent might operate as a defense.Nor is it believed that the case of Miles v. State(Tex. Cr. App.)103 S. W. 854, is in point; on the contrary, the effect of that decision is to affirm the correctness of the state's position here.The property taken in the Miles Case was community property, but the money stolen was in the actual and exclusive possession of the wife.It was there held that the ownership was well laid in the wife, not because she was the wife, but solely and only because the property was in her exclusive possession.Nor is it believed...