Maddox v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 205 |
| Parties | A. R. MADDOX v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Lamar. Tried below before the Hon. J. C. Easton.
Browne, for the State.
Indictment against appellant for theft of a buggy and two mules. On the trial of this cause the State proved that the accused obtained possession of the property charged to have been stolen by hiring. The witness was then asked to detail the statements and representations made at the time by defendant as to his intentions, to which the counsel for defendant objected, because there was no allegation in the indictment to justify such proof, or any other evidence necessary to constitute theft under art. 2385, Pas. Dig. The court overruled the objection and admitted the evidence.
The indictment is in the usual form for theft, charging the taking to be fraudulent and without the consent of the owner. The point of objection to the evidence was that the indictment does not aver that the taking, though originally lawful, was obtained by some false pretext, or with intent to deprive the owner of the value of his property, &c., as under art. 2385. The books abound in subtile and refined distinctions between larceny and trespass, and between larceny and swindling, or the obtaining of goods under false pretenses under statutory enactments. The chapter on theft, as found in the code, clearly defines the offense, and removes all doubt as to what acts shall constitute theft. The taking, as defined in art. 2385, does not describe a different offense from that defined by art. 2381, but only differs in its facts and circumstances, which are matters of proof, and need not be averred in the indictment. (White v. The State, 11 Tex., 769;Smith v. The State, 35 Tex., 738.) Nor did the court err in admitting evidence of the defendant's statements as to his intention at the time of the hiring. The inquiry was material, and was part of the res gestæ. (1 Greenl. Ev., § 108.) It appears from the testimony that the defendant hired the mules and buggy at the livery stable of Brame & McLeod, at Paris, stating at the time that he wanted the outfit to go out to Hathaway, six miles west from town to get his trunk; that he was going to start to school in Paris, to Stark's Seminary, and that he would return the buggy and mules some time during the day. Defendant was next heard from fifteen miles from Paris, on the Sulphur Springs road, going in a different direction from Hathaway. Soon after he was found in Hopkins county, ten miles south of Sulphur Springs, where he was arrested by the deputy sheriff of the county. It is further shown that he had sold the buggy and one of the mules to one Sewell, at whose house he was stopping for the night, and where he was arrested by the sheriff. Under this evidence it cannot be pretended that the accused had the consent of the owner to the taking of the property in the mules and buggy, or anything more than a transfer of the possession obtained by a false pretext. It is equally clear that his intention was to divest the owners of their property, in distinction from the use and temporary possession, and their consent, obtained under a false pretext, would not avail anything as a defense on the charge of theft committed under such circumstances. (Rosc. Cr. Ev., 571; 1 Bish. on Cr. Law, sec....
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