Lacey v. State

• Decision Date: 12 January 1887
• Citation: 3 S.W. 343
• Court: Texas Court of Appeals
• Parties: LACEY <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

3 S.W. 343

LACEY

v. STATE.¹

Court of Appeals of Texas.

January 12, 1887.

Appeal from district court, Bexar county.

The opinion discloses the case. The penalty assessed by the verdict was a term of three years in the penitentiary.

No appearance for the appellant. Asst. Atty. Gen. Burts, for the State.

HURT, J.

This is an appeal from a judgment of conviction for theft of property of the value of $20 or more. It was in evidence that certain lumber was taken from the possession of H. Gray; that the property was found on the premises of the appellant, where it had been converted to different purpurposes of repair; and that it aggregated the value of $23.50. The evidence goes to show that the owner of the property was a contractor and builder; that in the month of September, 1886, he was building a house, in the regular prosecution of his business, in the city of San Antonio; and that for that purpose he had placed lumber and materials on the lot, of which said lumber the stolen property was a portion. The appellant lived near by, and across a ditch from the building lot. About the twenty-eighth day of September, appellant was arrested for the theft, in consequence of discoveries made by one Speer, whom the owner of the property had placed as a watch to detect and apprehend the perpetrators of what appears to have been a series of constantly recurring thefts during said month. The record is silent as to the amount and value of lumber taken on any one particular occasion or night. True, the witness Speer, who had been set to watch, testifies to one night upon which he saw appellant and a negro woman make "several trips" to and from the lot, each time bearing away lumber, but his testimony does not fix the amount taken on that night. Lumber had been previously taken, but the amount of it is also unknown. Hence we have no fixed amount of lumber taken on the night testified to by the witness, nor have we an aggregation of the previous takings, so that a due subtraction may be made, and a certain amount and value taken on that or any other night fixed.

Upon this state of facts it was the duty of the trial judge to have instructed the jury that, to sustain a conviction for the theft of property of the value of $20 or over, the prosecution must select a certain transaction, and prove the value of the lumber taken on that occasion to have been $20 or over. Now, it is not necessary to enter into a discussion of the exceedingly nice question which sometimes...