Miles v. State

• Decision Date: 19 June 1907
• Citation: 103 S.W. 854
• Parties: MILES v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W. 854

MILES v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1907.

Appeal from Criminal District Court, Dallas County; E. B. Muse, Judge.

Pat Miles was convicted of theft, and appeals. Affirmed.

Muse & Allen, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of theft and his punishment assessed at two years in the penitentiary.

The indictment charges the theft to have been committed from the wife. The contention is that the ownership should have been alleged in the husband. The facts show that George Schmucker was in business in Dallas, having a store; that the night previous to the theft he carried some money to his residence, which is in a different part of the city, and placed the pocketbook, with the money in it, under a mattress. This seems to have been his custom. Leaving home the following morning for the store, he forgot and left the money at his home. After reaching the store he phoned his wife to bring the money to him at his store. Her trip to town was delayed some hours on account of rainy weather; but in the evening she drove down to one of the stores, not that of her husband, and upon reaching the store appellant, who was employed by the mercantile firm where she stopped to do some shopping, took her horse and hitched him. This seems to have been within the line of his duties for his employers. Mrs. Schmucker forgot the pocketbook, and left it in the buggy under the cushion. On account of a little shower of rain she directed appellant to arrange the cushion so that it would be protected from the rain, and left the buggy walking down the sidewalk. After being absent from the buggy some time the fact that she left the money occurred to her. Returning to the buggy, she failed to find it. It had disappeared. Under these circumstances it is contended by appellant that the ownership should have been alleged in the husband, and not in the wife. Authorities are cited in support of this proposition. We are of opinion that under the facts of this case the ownership was properly alleged. The first case cited is Merriweather v. State, 33 Tex. 790. In that case the Supreme Court laid down the proposition that "the community property of the husband and wife is under the immediate control and management of the husband, and, excepting the homestead, is subject to sale by him only, and is therefore, during the marriage, his to all intents and purposes. An indictment, therefore, for the theft of community property, should allege the ownership in the husband, or it will not authorize a conviction. In some of the states it has been decided that an indictment for the theft of the separate property of a married woman may allege the ownership in her; but in Massachusetts, in the case of Commonwealth v. Williams, where the law in relation to the separate property is in some respects similar to our own, the court held a different doctrine, and in the case of Commonwealth v. Davis it was decided that the property was properly laid in the husband, who had been absent for three years. It has also been held that when the wife had separated from her husband, and lived upon an income arising from property invested for her sole use, an indictment charging the theft of that income should allege the ownership in the husband. In the case now before the court the husband and wife were living together in...