Mullins v. State

• Decision Date: 01 January 1872
• Citation: 37 Tex. 337
• Parties: MARK MULLINS v. THE STATE.
• Court: Texas Supreme Court

37 Tex. 337

MARK MULLINS

v.THE STATE.

Supreme Court of Texas.

1872.

1.The record in a criminal case failed to show that notice of appeal was given in the court below, but the judgment of the court below directed that the defendant“be securely kept in the county jail for the period of sixty days, at the expiration of which time, unless otherwise directed by the Honorable the Supreme Court of Texas, he should be conveyed to the penitentiary.”Upon this recital of record, this court will presume that the notice of appeal was properly given, but was omitted by neglect of the district clerk.

2.To constitute the crime of theft, the taking must be an actual and intended fraud upon the rights of another; the taking must include the purpose and intent to defraud; it must be an intentional taking without the consent of the owner, an intentional fraud, and an intentional appropriation.

3.Intent, being a purpose of the mind, is discoverable only through the acts of the person; yet by the acts the intent can, in most cases, be proved with as much certainty as if it was a thing to be seen and felt, and therefore no person should be punished for an act, when the intent forms a material part of the offense, until the intent has been demonstrated beyond reasonable doubt.

4.See this case for evidence held to be insufficient to sustain a conviction for theft, and also for admonition to district judges relative to the granting of new trials.

APPEAL from Burleson.Tried below before the Hon. J. M. Onins.

The material facts of the case are sufficiently stated in the opinion of the court.

Robards & Blackburn, for the appellant.

William Alexander, Attorney-General, for the State.

OGDEN, J.

In October last, this appeal was dismissed for the reason that the record failed to show, in terms, that notice of appeal had been given in the court below.But the opinion was held up at the request of counsel, and no judgment in the case has been entered.Upon a reconsideration of the judgment of the lower court, we are convinced that a notice of an appeal was given, and that the transcript contains evidence of that fact, notwithstanding no formal notice was entered by the clerk in the records of the court.The judgment orders that the defendant“be securely kept in the county jail for the period of sixty days from this date, at the expiration of which time, unless otherwise directed by the Honorable the Supreme Court of Texas, he will be conveyed by the sheriff to the penitentiary.”This portion of the judgment of the court must have been founded upon a notice of an appeal, as the District Court has no authority to retain a convict in the county jail for the orders of this court, unless notice of an appeal has been formally given in that court; and we are therefore induced to treat the case as though the clerk had fully performed his duty, and entered upon the record this appeal in its proper order and...