Poston v. State

Decision Date30 March 1910
PartiesPOSTON v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Criminal District Court, Harris County; E. R. Campbell, Judge.

Sam Poston was convicted of a petty theft, and he appeals. Reversed and remanded.

Brockman, Kahn & Williams and E. T. Branch, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was convicted of a petty theft, and his punishment assessed at a fine of $10 and 10 days' imprisonment in the county jail.

The indictment charged appellant with the theft of one sack of walnuts, of the value of $5. The proof shows beyond controversy that it was a sack of mixed nuts, consisting of walnuts, almonds, hazelnuts, and niggertoes. Motion for a new trial was made in the court below, on the ground that the testimony did not support the allegations in the bill of indictment, and that there was a variance. We think this contention of appellant is correct. Warrington v. State, 1 Tex. App. 168, we think, is decisive of the question here presented. In that opinion the following rule is laid down: "But no allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage." And again: "Wherever there is a necessary allegation, which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description, as well as the main part, since one is essential to the identity of the other. See, also, to the same effect, Jones v. State, 12 Tex. App. 424; Holden v. State, 18 Tex. App. 91; Wade v. State, 35 Tex. Cr. R. 173, 32 S. W. 772, 60 Am. St. Rep. 31. Under an indictment alleging the theft of a sack of walnuts, the same will not be supported by proof of mixed nuts. Had the pleader said a sack of nuts, or a sack of mixed nuts, it would have been sufficient. Having used the descriptive as to the character of nuts, the state would be bound by it. In the case of McGee v. State, 4 Tex. App. 625, the indictment charged the theft of a pair of buckskin gloves, and this court held that this allegation would not be sustained by proof of theft of a pair of sheepskin gloves.

Because the proof does not sustain the allegation in the bill of indictment, the judgment is reversed, and the cause remanded.

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7 cases
  • Robinson v. State
    • United States
    • Texas Court of Criminal Appeals
    • December 21, 1910
    ...v. State, 57 Tex. Cr. R. 416, 123 S. W. 610; Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036; Melton v. State, 124 S. W. 911; Poston v. State, 126 S. W. 1148; Tucker v. State, 128 S. W. It has also been held that if money is unnecessarily described, the description must be proved as laid.......
  • Jaco v. State
    • United States
    • Texas Court of Appeals
    • January 14, 1983
    ...of a steel strap was insufficient to support to convict under an indictment charging theft of a steel trap; and in Poston v. State, 58 Tex.Cr.R. 583, 126 S.W. 1148 (1910), where proof of theft of a mixed bag of nuts, including walnuts, was insufficient to convict under an indictment chargin......
  • Ballinger v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 14, 1972
    ...215 S.W.2d 184; Flippin v. State, 134 Tex.Cr.R. 352, 115 S.W.2d 665; Garrett v. State, 87 Tex.Cr.R. 12, 218 S.W. 1064; Poston v. State, 58 Tex.Cr.R. 583, 126 S.W. 1148. It is also fundamental that a felony theft conviction cannot be sustained unless the value of the items alleged in the ind......
  • Smith v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 8, 1927
    ...S. W. 910; Robinson v. State, 60 Tex. Cr. R. 592, 132 S. W. 944; Tucker v. State, 59 Tex. Cr. R. 291, 128 S. W. 617; Poston v. State, 58 Tex. Cr. R. 583, 126 S. W. 1148; Corpus Juris, vol. 31, p. The above cases are authority for the proposition that no allegation, whether it be necessary o......
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