Perry v. State, 21479.
| Decision Date | 05 March 1941 |
| Docket Number | No. 21479.,21479. |
| Citation | 148 S.W.2d 412 |
| Parties | PERRY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Fayette County Court; E. A. Arnim, Jr., Judge.
R. L. Perry was convicted of the theft of a check of the value of $15, and he appeals.
Reversed and cause ordered dismissed.
John F. Perry, of San Antonio, for appellant.
John C. Marburger, Co. Atty., of La Grange, and Lloyd W. Davidson, State's Atty., of Austin, for the State.
Appellant was charged by complaint and information with the theft of a check of the value of $15 and was assessed a penalty of six months in jail and a fine of $300, from which he appeals.
The complaint and information allege that the said R. L. Perry, on or about the 23rd day of February, 1940, "did then and there unlawfully, wilfully and fraudulently take, steal and carry away certain corporeal personal property, not his own, to-wit: a check of the value of $15.00, the same being the corporeal personal property of George H. Giesber from the possession of the said George H. Giesber without the consent of the said George H. Giesber with the intent to deprive said George H. Giesber of the value thereof, * * *".
It will be noted that there is no description of the check whatever. It does not show by whom it was drawn, its date, amount of the check, the number, nor to whom it is payable. It merely alleges it was a check of the value of $15. The complaint and information are insufficient for lack of description. Fulshear v. State, 59 Tex.Cr.R. 376, 128 S.W. 134; Gaines v. State, Tex.Cr.App., 77 S.W. 10; Calentine v. State, 50 Tex.Cr.R. 154, 94 S.W.1061, 123 Am.St.Rep. 837; Luce v. State, 88 Tex.Cr. R. 46, 224 S.W. 1095, 1097; Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561; Burns v. State, 112 Tex.Cr.R. 328, 16 S.W. 2d 538; Sasse v. State, 113 Tex.Cr.R. 513, 22 S.W.2d 941; Fuller v. State, 118 Tex. Cr.R. 588, 37 S.W.2d 1034; 41 Tex.Jur. 117, paragraph 73. Carlton v. State, 132 Tex.Cr.R. 537, 106 S.W.2d 279.
That the check must be sufficiently described to identify it has been so frequently considered and the reason for the conclusion so thoroughly discussed that we deem it unnecessary to further treat the subject in this opinion.
The appellant's father, acting as his attorney, presented for filing in this court what he denominates a brief for appellant. In it he attempts to try the case in this court by statements of his own as well as affidavits of other parties. His statements are directly in...
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... ... Appellant's contention appears to be supported by the cases of: Leinart v. State, 159 Tex.Cr.R. 220, 262 S.W.2d 504, Perry v. State, 141 Tex.Cr.R. 291, 148 S.W.2d 412, Burns v. State, 112 Tex.Cr.R. 328, 16 S.W.2d 538, and Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d ... ...
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...personal property. * * *' The contention urged for reversal in this cause is the same as that which was presented in Perry v. State, 141 Tex.Cr.R.291, 148 S.W.2d 412. There this Court said: 'It will be noted that there is no description of the check whatever. It does not show by whom it was......
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