Livingston v. State

• Decision Date: 19 January 1898
• Citation: 43 S.W. 1008
• Parties: LIVINGSTON v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 1008

LIVINGSTON v. STATE.

Court of Criminal Appeals of Texas.

January 19, 1898.

Appeal from Dallas county court; Kenneth Foree, Judge.

C. Livingston was convicted of theft, and appeals. Affirmed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of the theft of personal property under the value of $50, and his punishment assessed at 10 days' imprisonment in the county jail; hence this appeal.

What appear to be bills of exception were filed long after the adjournment of the term of court at which said case was tried, and no excuse is shown for the failure to file them within the time authorized by law. However, nearly all of said bills relate to the charge of the court, and the failure of the court to give certain special instructions requested, and these matters are brought forward in a motion for a new trial. We therefore, under the rule heretofore laid down, have to consider said refused charges. The charges refused relate to the question of possession; it being contended by appellant that the proof shows that at the time of the alleged theft he (appellant) was in possession of the property charged to have been stolen, and therefore, under this indictment, could not be convicted of theft. At any rate, it is contended, the proof of possession in him (appellant) was such as to require the court to give the charges requested on the subject, this being a misdemeanor case. It is true that the appellant, in his testimony, says: "I had charge of the shop while Jones and Myers were gone. I had full control, care, and possession of the shop, and all the goods, implements, and furniture in the shop. I had full control, care, and possession of the razor and pair of clippers in question." But this testimony is to be taken in connection with the other evidence bearing upon this point. The testimony on the part of the state shows that the property stolen was a razor and a pair of clippers,—tools used in the barber shop. The shop in question was owned by E. M. Jones, and appellant and one Myers were his employés. All the property in the shop, so far as the record discloses, belonged to Jones. When Jones was temporarily absent from the shop (which sometimes occurred), either Myers or appellant (whichever happened to be present) was left in charge of the shop, but had no particular charge, except a mere custody such as pertains to an employé or servant, and had no power to sell or dispose of the goods. Technically, the evidence for the...